Ex parte Thomas

• Decision Date: 19 April 1923
• Docket Number: 6 Div. 810.
• Citation: 209 Ala. 276,96 So. 233
• Parties: EX PARTE THOMAS. v. AMERICAN CAST IRON PIPE CO. THOMAS
• Court: Alabama Supreme Court

96 So. 233

209 Ala. 276

EX PARTE THOMAS.

THOMAS v. AMERICAN CAST IRON PIPE CO.

6 Div. 810.

Supreme Court of Alabama

April 19, 1923

Certiorari to Circuit Court, Jefferson County; Dan A. Greene, Judge.

Petition of Mattie Thomas for certiorari to review the finding and judgment of the circuit court of Jefferson county, in a proceeding under the Workmen's Compensation Act by Mattie Thomas v. American Cast Iron Pipe Company. Writ denied judgment affirmed.

David S. Anderson and James Esdale, both of Birmingham, for petitioner.

Cabaniss Johnston, Cocke & Cabaniss and Brewer Dixon, all of Birmingham, opposed.

THOMAS J.

The petition is by a widow for compensation for the death of the husband, the result of an accident arising out of and in the course of his employment. Ex parte Majestic Coal Co. et al. 208 Ala. 86, 93 So. 728.

The controversy was heard by the judge of the circuit court, who determined that petitioner was not entitled to compensation. Under this ruling the paramount question for decision is whether or not Mattie Thomas was dependent as contemplated in the Compensation Act. Gen. Acts 1919, p. 206; Ex parte Central Iron & Coal Co. (Ala. Sup.) 95 So. 472.

The facts recited as "proven" in the case are that the plaintiff was married to Henry Thomas, decedent, many years before his death; that they separated about 20 years ago and have not since lived together as man and wife; that shortly after their separation said Thomas "began living with one Cordelia Thomas as his wife," who was thereafter and to the time of his death "known and accepted generally as the wife of Henry Thomas, and one or more children were born to them"; that no divorce had ever been granted to Thomas against his wife, Mattie Thomas. It was further shown that petitioner knew of the relations between Henry and Cordelia throughout the many years that his relationship with her existed, and said Mattie "never made any attempt to assert her rights as a wife"; that shortly after the death of Henry, Cordelia, "known as his wife," made her claim against defendant as the widow, which was settled in "a lump sum," "with the approval of the court," and that this cash compensation was paid to Cordelia. Ex parte Sloss-Sheffield S. & I. Co., 207 Ala. 531 93 So. 425; Ex parte Central Iron & Coal Co., supra.

A further finding of fact by the circuit court was that said Mattie learned of the death of her husband within two weeks of its occurrence, made no effort to establish her rights (as widow) until 6 or 7 months thereafter, when she placed her claim in the hands of attorneys who gave notification thereof after the settlement, approval by the court, and its payment in "a lump sum compensation to said Cordelia, as widow of the decedent."

The court declared in its finding that it was a fact that decedent had never been divorced from his wife, Mattie; that his alleged marriage to Cordelia was invalid (Evans v. Evans, 200 Ala. 329, 76 So. 95); that, in the absence of testimony to the contrary, the plaintiff is the legal wife decedent and is legally presumed to be dependent upon him and entitled to compensation as set forth in the statute. The recital of the circuit court of its finding of the evidence to the contrary was-though there was practically no dispute as to the fact of separation for about 20 years preceding decedent's injury, and of his living with another woman down to and at the time of his death-that plaintiff testified that the deceased had at various times given her money for her support, failed "to specify the times, the occasions, and the amount, could give no definite information except as to one occasion, when she claimed he gave her a small sum of money during Christmas," and that this gift was "just before his death." The latter gift was corroborated, though it was shown that the meeting of plaintiff with decedent was a casual meeting on the streets, when he gave her the small sum of money testified to have been given. Plaintiff testified to other gifts; yet it is recited in the finding of fact by the court that "such testimony" was "of such uncertain and unsatisfactory nature that the court is unable to form any idea of their nature and extent." The testimony further showed that, since the separation of Henry and Mattie, the latter had earned her own living, making good wages most of the time, and that "there was no evidence tending to show any association or communication with her husband," as man and wife, during their long separation.

The contention of plaintiff is that the statute makes the wife conclusively dependent upon her husband, and, even if it is not so, the phrase contained in the statute (Gen. Acts 1919, p. 217, § 14) that the wife is conclusively presumed wholly dependent, "unless it be shown that the husband was not in any way contributing to her support," was susceptible of the reasonable interpretation "that the slightest contribution on the part of the husband fixes" the right of such wife to compensation under the statute; that is to say, that the wife had the right to compel the husband to contribute to her support, and that, by reason thereof, under the Alabama statute she had a right to enforce against the employer this right, which existed against the husband during his life.

The concluding provision of subsection (a), § 14, supra, that the husband "was not in any way contributing to her support," must be given a liberal yet reasonable interpretation under the letter and spirit of the act, having regard for the history of the act and the purpose sought to be conserved by the general enactment therein and specific provisions thereof. (Italics supplied.) When so construed, the words "in any way" must refer to the character and not to the nature and extent of the support contributed by the husband. Amer. Fuel Co. v. Ind. Comm. (Utah) 206 P. 786; Collwell v. Bedford Stone & Const. Co., 73 Ind.App. 344, 126 N.E. 439, 440; 1 Honnold on Work. Comp. pp. 224, 226-227; New Monckton Collieries v. Keeling (4 B. W. C. C. 332) 6 Neg. Com. Cases, 240.

The trial judge...