Eureka Block Coal Company v. Wells

• Decision Date: 17 March 1925
• Docket Number: 12,159
• Citation: 147 N.E. 811,83 Ind.App. 181
• Parties: EUREKA BLOCK COAL COMPANY v. WELLS
• Court: Indiana Appellate Court

147 N.E. 811

83 Ind.App. 181

EUREKA BLOCK COAL COMPANY v. WELLS

No. 12,159

Court of Appeals of Indiana

March 17, 1925

Modified and rehearing Denied May 21, 1925.

From Industrial Board of Indiana.

Application of Letitia Wells, widow of James E. Wells, to be reinstated as his dependent under the Workmen's Compensation Act making the Eureka Block Coal Company, his employer defendant. From an order granting the application, the defendant appeals.

Affirmed.

Will H. Hays, Hinkle C. Hays, A. C. Owens, W. Paul Stratton, John S. Taylor, W. H. Bridwell and G. W. Buff, for appellant.

Paul R. Shafer, for appellee.

OPINION

REMY, J.

On January 30, 1922, appellee was awarded compensation as widow and sole dependent of James E. Wells who had lost his life as a result of an accident arising out of his employment by appellant. Compensation in accordance with the award, which was for three hundred weeks at the rate of $ 13.20 per week, was regularly paid, until November 7, 1923. On November 9, 1923, appellee was married to Charles McCormick, with whom she lived as wife for about ten days, when she left him, claiming, at that time, to have discovered that the marriage contract was procured by fraud. On December 12, 1923, and after she had discovered the fraud, appellee formally certified to appellant that she had been married, and there being due her under the terms of the award, for the two days from November 7, 1923, to the date of her marriage, the sum of $ 3.77, she on that day receipted for that sum, and made settlement with appellant. As evidence of the settlement she signed and delivered to appellant, the following receipt:

"Received of Eureka Block Coal Co. the sum of $ 3.77, making in all, with weekly payments already received by me, the total sum of $ 1,244.57, in final settlement of compensation agreed on--awarded me under the provisions of the Indiana Workmen's Compensation Act, as a dependent of James Wells, who died on January 19, 1922, by reason of an injury arising out of and in the course of his employment on January 19, 1922, while in the service of the said Eureka Block Coal Co."

This settlement was a transaction solely between the parties. It was not made pursuant to an order of the Industrial Board, nor was it approved by the board after it was made.

On December 13, 1923, appellee commenced a suit in the Vigo Superior Court against McCormick for the annulment of the marriage on the ground of fraud in its procurement; and on January 24, 1924, the marriage was annulled as prayed. Thereafter, appellee filed with the Industrial Board a petition setting forth the facts as to her marriage and the annulment thereof, and asked that she be reinstated as the dependent of James E. Wells, the reinstatement to be as of November 10, 1923. To the petition, appellant, in addition to a denial, filed a special answer setting up the facts as to the marriage and the settlement with appellee to the date of the marriage. At the hearing, the board found that the marriage had been annulled as set forth in the petition, and that appellee should "be restored to compensation as of November 10, 1923," and made an order accordingly.

Appellant points out that clause (e) of § 38 of the Workmen's Compensation Act (§ 9483 Burns 1926, Acts 1919 p. 158), among other things, provides that: "The dependency of a widow * * * shall terminate with * * * her marriage subsequent to the death of the employee," and, with much earnestness, contends that by reason of this provision of the act, the marriage of appellee to McCormick, though voidable, nevertheless was a marriage which terminated absolutely and permanently the dependency of appellee as widow of James E. Wells. We do not concur in this view. Giving the provision referred to a broad and liberal construction, as we must, a marriage, within the meaning of the statute, is not void or voidable marriage which may at once be annulled, but a valid and subsisting marriage.

In a proper proceeding, the marriage was annulled by a...