Jelicic v. Vermillion Coal Co.

• Decision Date: 22 May 1924
• Docket Number: No. 11900.,11900.
• Parties: JELICIC v. VERMILLION COAL CO.
• Court: Indiana Appellate Court

81 Ind.App. 675

144 N.E. 38

JELICIC

v.VERMILLION COAL CO.^*

No. 11900.

Appellate Court of Indiana, Division No. 1.

May 22, 1924.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Joka Jelicic, by Dr. Bojidar Pouritch, Consul of the Kingdom of the Serbs, Croats and Slivenes, attorney in fact, against the Vermillion Coal Company. From denial of compensation, claimant appeals. Affirmed.Defrees, Buckingham & Eaton, of Chicago, Ill., for appellant.

Hays & Hays, A. C. Owens, W. P. Stratton, J. S. Taylor, W. H. Bridwell, and G. W. Buff, all of Sullivan, for appellee.

BATMAN, J.

Appellant seeks to reverse an award in which she was denied compensation against appellee, based on the following finding of facts:

“And the full board, having heard the argument of counsel, having reviewed the evidence and being duly advised in the premises, finds that on July 20, 1921, one Vide Jelicic was in the employment of the defendant at an average weekly wage of $24; that on said date the said Vide Jelicic received a personal injury by an accident arising out of and in the course of his employment, of which the defendant had knowledge; that said injury resulted in the death of said Vide Jelicic on August 1, 1921, of which the defendant had knowledge; that at the time of the injury and death of said Vide Jelicic, the said Vide Jelicic left surviving him Joka Jelicic, his widow, and Djuka Jelicic, his minor daughter, who were at said time living in the Kingdom of the Serbs, Croats and Slovenes; that the said Djuka Jelicic died on April 18, 1922; that the said Vide Jelicic and his wife and daughter had been living apart since January 23, 1914; that up to 1917 the said Vide Jelicic had sent to his wife, Joka Jelicic, the sum of $1,650; that the said Joka Jelicic last heard of her husband, Vide Jelicic, on April 13, 1921; that, at the time of the injury and death of said Vide Jelicic, the said Joka Jelicic was not dependent upon him for her support; that the injury and death of the said Vide Jelicic was not due to his willful misconduct or willful disobedience of any orders of the defendant; that the defendant has paid $100 of the burial expenses of the said Vide Jelicic.”

Appellant's assignment of error contains 11 specifications, but all are covered by the first, as it presents the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts. Acts 1917, p. 154. We shall first consider the sufficiency of the facts found to sustain the award, denying compensation to appellant, as the widow of the deceased employee, Vide Jelicic. Under the law as it has existed since 1919, three classes of widows of deceased employees are entitled to receive compensation, as dependents, where facts are found showing liability, viz.: (1) Those living with their husbands at the time of their deaths; (2) those not living with their husbands at the time of their deaths, but dependent upon them for support; (3) those not living with their husbands at the time of their deaths, and not dependent upon them for support, but nevertheless were entitled to support from their husbands at the time of their deaths, by virtue of the laws of the state. Acts 1919, p. 165; Collwell v. Bedford Stone, etc., Co. (1920) 73 Ind. App. 344, 126 N. E. 439.

[1] If a widow falls within either said first or third class, she is conclusively presumed to be wholly dependent upon her deceased husband for support; but if she falls within said second class, there is no such presumption, and hence the question of dependency must be determined in accordance with the fact, as the fact may be at the time of such death, as provided in said last-named act. In the instant case it is clearly disclosed by the finding of facts that appellant does not fall within either said first or second class, as it is found that appellant was living apart from her husband at the time of his death, and that she was not dependent on him for her support. Therefore we are only required to determine whether she falls within said third class, which is based on the italicized portion of the following provision of section 38 of the Workmen's Compensation Act, as amended in 1919:

“The following persons shall be conclusively presumed to be wholly dependent for support on a deceased employee:

(a) A wife upon her husband with whom she is living at the time of his death, or upon whom the laws of the state impose the obligation of her support at such time. ***” (Our italics.) Acts 1919, p. 165.

Whether a wife is living with her husband at the time of his death involves a conclusion of fact, but whether the laws of the state impose an obligation upon him to support her at such time involves a conclusion of law, as its determination requires an application of abstract principles of law to the facts, as they are found to exist. Lagler v. Roch (1914) 57 Ind. App. 79, 104 N. E. 111;Cable Co. v. McElhoe (1914) 58 Ind. App. 637, 108 N. E. 790.

[2] The burden of proving the facts which would warrant such a conclusion of law was upon appellant, and, if not found, we must assume they were not proved. Raynes v. Staats-Raynes Co. (1918) 68 Ind. App. 37, 119 N. E. 809;Calumet, etc, Co. v. Mroz (1922, Ind. App.) 137 N. E. 627;Chicago, etc., R. Co. v. Kaufman (1921, Ind. App.) 133 N. E. 399;S. J. Peabody, etc., Co. v. Miller (1922, Ind. App.) 133 N. E. 591.

[3][4][5] The only facts found, bearing upon the question under consideration, are the following: Appellant is the widow of the deceased employee, Vide Jelicic. She had been living apart from him since January 23, 1914. He had sent her the sum of $1,650 prior to 1917, but she was not dependent upon him for her support at the time of his death. She last heard of him on April...