King v. Illinois Steel Corp., 14275.

• Decision Date: 15 May 1931
• Docket Number: No. 14275.,14275.
• Citation: 176 N.E. 161,92 Ind.App. 456
• Parties: KING v. ILLINOIS STEEL CORPORATION.
• Court: Indiana Appellate Court

92 Ind.App. 456

176 N.E. 161

KING

v.ILLINOIS STEEL CORPORATION.

No. 14275.

Appellate Court of Indiana, in Banc.

May 15, 1931.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Josephine King for the death of Nathan Mabery, her brother, opposed by the Illinois Steel Corporation, employer. From an award of the Industrial Board denying compensation, the claimant appeals.

Reversed, with instructions.

Milo C. Murray, of Gary, and R. L. Bailey and Joseph T. Markey, both of Indianapolis, for appellant.

White, Wright & Boleman, of Indianapolis, for appellee.

WOODS, J.

This is a proceeding brought by the appellant, Josephine King, against the Illinois Steel Corporation, appellee, before the Industrial Board of Indiana, for an award of compensation pursuant to the Workmen's Compensation Act, based upon a claim of dependency on one Nathan Mabery, her brother, who received injuries while in the employ of appellee which resulted in his death. The claim was filed upon a form adopted and furnished by the Industrial Board of this state. It was submitted to a single member of the board for hearing, who refused to award compensation. An application for review by the full board was made and upon hearing, the award for compensation was again refused. It is from this action of the Industrial Board that this appeal is taken.

The only question submitted for consideration by this court, is whether or not the appellant was a dependent of Nathan Mabery, as contemplated by the Workmen's Compensation Act, thus entitling her to compensation because of his death from injuries received as above stated.

There was no evidence introduced at the hearings before the Industrial Board except that on behalf of appellant. It is wholly undisputed, and from it the following facts are developed: Nathan Mabery was a brother of appellant. In October, 1928, he came from Chicago to Gary, where he had employment of various kinds, until May 16, 1930, when he received injuries from which he died May 21, 1930. During this entire time he occupied a room and ate his meals at the home of appellant. She made no charge for the service. Appellant owned her own home, was married, and living with her husband during the time in question, but he had been an invalid; unable to work for a period of four years previous to the death of Nathan Mabery; had been confined to his bed some of the time. Both appellant and her husband were without means. Previous to Mabery coming to her home, appellant had kept some roomers and boarders, but since he had been staying there she had not had any boarders, had a man and his wife as roomers for three weeks, who paid $5 per week; another man as roomer for three weeks, who paid $3 per week; and another man as roomer, who had been there since some time in 1929, who paid $4 per week. When Mabery came to Gary in October, 1928, he had a wife living, and contributed to her support until her death in February, 1929. During the entire time he lived in the home of appellant he gave her money with which to keep up and maintain the home, the amount and the times when the money would be given to appellant varied depending upon the amount of wages received by Mabery, and the frequency of their payment to him. If he (Mabery) was paid each week, he would usually give appellant money each week. The amount varied from $8 up, on one occasion he gave her $20, and on another $30, and previous to his death he gave her his pay check from appellee in the sum of $28.30. This money was used to supply food and groceries for the home, and for such other purposes as the appellant saw fit in the home; he also paid the light, gas, and coal bills, and taxes on appellant's property. When appellant was sick, he called the doctor, paid him for his services rendered to both appellant, and her husband, also employed and paid for help in the home when appellant was ill. Mabery paid the bills and gave his sister money for household expenses because her husband was ill and unable to support her. Except for the small amount that she received from roomers as aforesaid, appellant had no means of support other than that furnished by her brother. Mabery had neither wife nor children at the time of his death.

It was further stipulated between the parties that Nathan Mabery died on May 21, 1930, as the proximate result of personal injuries received May 16, 1930, by reason of an accident arising out of and in the course of his employment by appellee; that his average weekly wage was $26.40; that a good faith effort had been made to adjust the differences, which resulted in a disagreement.

Section 38 of the Workmen's Compensation Act, Acts 1929, c. 172, p. 537, after enumerating explicitly the persons who shall be conclusively presumed to be wholly dependent for support upon a deceased employee in the application of the act, then provides that: “In all other cases, questions of total dependency shall be determined in accordance with the fact, as the fact may be at the time of the death, and question of partial dependency shall be determined in like manner as of date of the injury.”

[1] Unless she brings herself within the purview of the statute above quoted, by proof of sufficient facts, appellant is not entitled to compensation under the act; that is to say, whether appellant was a dependent of ...