Johnson v. Republic Iron & Steel Co.

• Decision Date: 30 October 1924
• Docket Number: 6 Div. 147
• Citation: 212 Ala. 149,102 So. 44
• Court: Alabama Supreme Court
• Parties: JOHNSON v. REPUBLIC IRON & STEEL CO.

102 So. 44

212 Ala. 149

JOHNSON v. REPUBLIC IRON & STEEL CO.

6 Div. 147

Supreme Court of Alabama

October 30, 1924

Rehearing Denied Nov. 20, 1924

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Petition by Ellen Johnson against the Republic Iron & Steel Company for compensation under the Workmen's Compensation Act. From a decree or judgment denying compensation, petitioner appeals by certiorari with bill of exceptions. Affirmed.

Reuben H. Wright and Leigh M. Clark, both of Tuscaloosa, and Frank Bainbridge, of Birmingham, for appellant.

Percy Benners & Burr and Salem Ford, all of Birmingham, for appellee.

SAYRE J.

Certiorari with bill of exceptions to review the finding and decree of the circuit court denying compensation to appellant under the Workmen's Compensation Act. The theory of appellant's case is thus expressed in the outset of her brief: A widow who has been wrongfully deserted by her deceased husband and who was involuntarily living separate and apart from him at the time of his death, is entitled to receive compensation from his employer under the provisions of the act, even though he was not contributing to her support in any way at the time of his death. We regret our inability to construe the statute as it must be construed to make appellant's claim of compensation effectual, or rather, we will say, the statute has been so framed as, very plainly, to exclude appellant in her circumstances from its benefits.

Appellant and the deceased employee, Curtis Johnson, were man and wife but 10 years or more before his death Curtis had voluntary and wrongfully abandoned appellant, and had entered into a bigamous marriage with one Georgia, who now claims to be his widow. During these years appellant and her said husband lived apart and he contributed nothing to her support. These conclusions are in agreement with the findings of the circuit court as shown by the record.

By statute it is provided (Acts 1919, p. 217):

"14. Who are dependents, and allowances to each.--(1) Wife and children conclusively presumed wholly dependent when. For the purposes of this act the following described persons shall be conclusively presumed to be wholly dependent:

"(a) Wife, unless it be known [meaning 'shown'] that she was voluntarily living apart from her husband at the time of his injury or death, or unless it be shown she was not married to the deceased at the time of the accident or for a reasonable period prior to his death, or unless it be shown that the husband was not in any way contributing to her support."

Appellant as we have in effect already said, was not voluntarily living apart from her husband--so far as she was concerned her separation from him was involuntary. But she had all along been the lawful wife of deceased. So then the only question presented is, what did the Legislature intend when it adopted its concluding alternative "unless it be shown that the husband was not in any way contributing to her support?" If the way were open to us we would prefer to hold, as did the Supreme Court of Ohio in Industrial Commission v Dell, 104 Ohio St....