In re Carroll

• Decision Date: 27 June 1917
• Docket Number: No. 9951.,9951.
• Citation: 116 N.E. 844,65 Ind.App. 146
• Parties: In re CARROLL.
• Court: Indiana Appellate Court

65 Ind.App. 146

116 N.E. 844

In re CARROLL.

No. 9951.

Appellate Court of Indiana, Division No. 2.

June 27, 1917.

Certified Questions from Industrial Board.

Proceeding for compensation under the Workmen's Compensation Act by one Carroll. On certification of questions of law by the Industrial Board. Questions answered.

CALDWELL, J.

Under the provisions of section 61 of the Workmen's Compensation Act (Acts 1915, p. 392), the Industrial Board has certified to this court certain questions of law, based upon the facts presented by a proceeding pending before that body, seeking the opinion of this court for guidance in determining such proceeding. The substance of the statement of facts as formulated by the Board, and wherein the employé involved is designated as A. and the employer, as B., is as follows:

November 10, 1916, A., while in B.'s employ, received a personal injury from which he died the next day, the circumstances being such as to authorize an award, provided his widow and children were at the time dependents within the meaning of the act. His wages averaged $10.64 per week. A. was married to the widow claimant in the city of New Orleans, La., January 26, 1903. They were not divorced. A. left surviving him also, as the fruits of such marriage, a son and a daughter, aged respectively 11 and 9 years. By reason of A.'s intemperate habits and vicious disposition, his wife was compelled to and did separate herself from him about 9 years prior to his death, and after such separation she did not live with him, except in the month of August, 1914. She was justified in not living with A., but A. was not justified in living apart from her. At some time after August, 1914, A. came to Indianapolis, where he was injured and died. His wife and children remained in New Orleans. While A. lived with his wife and children, he supported them only in part. During that time his wages averaged about $9 per week, of which he gave to his wife per week sums varying from $3 to $9. The wife by her own labor largely supported both herself and children throughout her entire married life. During August, 1914, while A. was living with his family, he contributed somewhat to their support. For a time after August, 1914, A. remained in New Orleans and worked at intervals. Within the period when A. was living apart from his family, and especially while he remained in New Orleans, following August, 1914, if the children were able to locate him on pay days, he occasionally bought shoes for them, and gave them money not exceeding 75 cents at any time. The amount of money which he gave to his wife within the period of their married life did not average to exceed $25 per year. The amount contributed to his children while he was living apart from his wife after August, 1914, did not exceed $12 per year. In 1908 the wife, proceeding under a Louisana statute, procured an order of court against A. that he pay to her $3 per week for the support of herself and children. A. complied with the order for about 6 months, but thereafter made no further payments, but moved from place to place, that he might avoid any process of court directed to the enforcement of the order. In September, 1914, the wife, by a proceeding under another Louisiana statute, procured an order of court that A. pay to her $2.50 per week for the support of the children. A., being released on his recognizance, failed entirely to comply with the order.

Upon the facts, the Board submits questions as follows: Under the provisions of the Workmen's Compensation Act: (1) Was the wife a dependent, and, if so, was such dependency total or partial? (2) Were the children dependents, and, if so, was such dependency total or partial?

In considering these questions, there are certain facts, not clearly appearing, which we shall assume: Thus, that A.'s contributions to the support of his wife and children were only as specifically stated; that a statement to the effect that within a named time A. gave to his wife and children certain sums of money, or not exceeding certain sums, or bought for them certain articles, means that within such time he made no further or other contributions to their support; that he made no contributions to his wife after he finally left New Orleans, which was some time after September, 1914, apparently soon thereafter.

The provisions of the Workmen's Compensation Act specially applicable are as follows:

“Sec. 38. The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employé: (a) A wife upon a husband with whom she lives at the time of his death. (b) *** (c) A boy under the age of 18, or a girl under the age of 18, upon the parent with whom he or she is living at the time of the death of such parent, there being no surviving dependent parent. *** In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury; and in such other cases, if there is more than one person wholly dependent, the death benefit shall be divided among them; and persons partly dependent, if any, shall receive no part thereof; if there is no one wholly dependent and more than one person partly dependent, the death benefit shall be divided among them accordingto the relative extent of their dependency.”

[1] It will be observed that, under the provisions of section 38, a wife or a child, or both, may be conclusively presumed to be wholly dependent, or on an inquiry into the facts may be found to be either wholly or partially dependent. Where the situation exists that gives rise to the presumption, there can be no further inquiry, regardless of what the real facts are. In order that such situation may arise in favor of a wife she must be living with her husband at the time of his death. In order that such conclusive presumption may be indulged in favor of a child, such child must be less than 18 years of age, must have been living with the involved parent at the time of his death, and there must not be a surviving parent, either conclusively presumed to be wholly dependent or found to be either wholly or partially dependent.

Under the facts here, it does not appear that either the wife or the children were living with the husband and father at the time of his death. It follows that a conclusive presumption of total dependency cannot be indulged in favor of either. See the following decided under statutes identical with or very similar to ours on the subject under consideration: In re Nelson, 217 Mass. 467, 105 N. E. 357;In re Gallagher, 219 Mass. 140, 106 N. E. 558;In re Bentley, 217 Mass. 79, 104 N. E. 403;Northwestern, etc., Co. v. Industrial Comm., 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, and note at page 370, Ann. Cas. 1915B, 877; Finn v. Detroit, etc., Co. (Mich.) 155 N. W. 721, L. R. A. 1916C, 1142, Ann. Cas. 1915B, 377, and note. Since the decision of the above cases cited from Massachusetts, the Workmen's Compensation Act of that state has been amended, extending the effect of a conclusive presumption of total dependency in favor of a wife to a case where it is found that at the time of her husband's death she was living apart from him for justifiable cause, or because he had deserted her. St. Mass. 1914, c. 708, § 3. Our act does not contain a similar provision.

We proceed to the question of dependency unaided by conclusive presumption: The provisions of the act applicable here, as already stated, are as follows:

“In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury.”

We have hereinbefore set out the facts. Are those facts sufficient to establish dependency in favor of either the wife or the children? Whether one person is dependent on another, within the meaning of that term as used in Workmen's Compensation Acts, is usually held to be a question of fact. In re Fierro, 223 Mass. 378, 111 N. E. 957;In re Newman, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145;Veber v. Massachusetts, etc., Co., 224 Mass. 86, 112 N. E. 485; In re Gallagher, supra; Finn v. Detroit, etc., Co., supra.

[2][3] It is perhaps more accurate to say that questions of dependency are mixed questions of fact and law, since the ultimate question of what constitutes a dependency is a law question. It is the exclusive province of the Board to determine the facts and to draw legitimate inferences therefrom. It is the province of the Board also in the first instance to determine from such facts and inferences whether dependency exists; but, as such latter process involves a law question, the action of the Board in such respect is reviewable by this court, when an appeal is taken under section 61 of the Workmen's...