Rosewall v. Folsom

• Decision Date: 09 January 1957
• Docket Number: No. 11764.,11764.
• Citation: 239 F.2d 724
• Parties: Mary H. ROSEWALL, Plaintiff-Appellee, v. Marion FOLSOM, Secretary of Health, Education and Welfare, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

239 F.2d 724 (1957)

Mary H. ROSEWALL, Plaintiff-Appellee, v. Marion FOLSOM, Secretary of Health, Education and Welfare, Defendant-Appellant.

No. 11764.

United States Court of Appeals Seventh Circuit.

January 9, 1957.

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John B. Stoddart, Jr., U. S. Atty., Springfield, Ill., Marcus A. Rowden, Attorney, U. S. Department of Justice, Washington, D. C., George Cochran Doub, Asst. Atty. Gen., Melvin Richter, Attorney, Department of Justice, Washington, D. C., for appellant.

Robert E. Hunt, Peoria, Ill., for appellee.

Before DUFFY, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.

DUFFY, Chief Judge.

Plaintiff brought this action under Section 205(g) of the Social Security Act, 42 U.S.C.A. 405(g) to obtain judicial review of a disallowance of her claim for widow's insurance benefits under Section 202(e) of the Act, 42 U.S.C.A. 402 (e). Her application for benefits was based upon her being the widow of Edwin G. Rosewall, a deceased insured wage earner who died in the State of Washington on January 21, 1952.

A hearing was held before a Referee of the Social Security Administration who found that plaintiff was not "living with" wage earner at the time of his death as required by Section 202(e) of the Act, and concluded that she was therefore not entitled to widow's insurance benefits. Plaintiff requested and was granted a review by the Appeals Council. On May 8, 1952 the Appeals Council adopted the Referee's determination and affirmed his decision. This constituted the final decision of the Secretary of Health, Education and Welfare within the meaning of Section 205(g) of the Act. The complaint herein prayed for a reversal of the administrative decision. On December 27, 1955, the District Court entered judgment reversing the Secretary's determination and ordered defendant pay to plaintiff widow's insurance benefits.

The findings of the Referee disclosed that plaintiff and the wage earner were married in 1917 and lived together until sometime in 1939, at which time they resided in Peoria, Illinois. The wage earner had been unemployed for a short period, but he then obtained work in 1939 which took him away from the city of Peoria. After he left that city he failed to provide for the plaintiff, and on September 7, 1939 she caused him to be arrested and brought to trial on a charge of non-support. He pleaded guilty, and on September 11, 1939 the Peoria County Court ordered that he be placed on probation for a period of one year, and to pay the plaintiff $25 on September 13, 1939, $50 on October 5, 1939, and $50 on the 5th day of each month thereafter for the period of the year of probation. Wage earner paid the $50 per month for a period of eight months but paid nothing thereafter. On September 5, 1940 the Probation Officer filed a report with the County Court showing wage earner was in arrears, and an alias capias was issued on September 6, 1940 but was never executed, apparently because the wage earner could not be located.

Section 216(h) (2) of the Social Security Act as amended, 42 U.S.C.A. 416 (h) (2) provides in part: "* * * a widow shall be deemed to have been living with her husband at the time of his death if they were both members of the same household on the date of his death, or she was receiving regular contributions from him toward her support on such date, or he had been ordered by any court to contribute to her support." It will be noted that the first two clauses refer respectively to "the date of his death" and "on such date." But such wording is not repeated after the last clause. Plaintiff relies heavily upon the fact the words "date of his death" were not again repeated.

However, Section 404.1111 of Social Security Administration Regulation No. 4 (20 C.F.R. 404.1111), provides as follows in pertinent part: "Definition of `living with' — The wife or husband, as the case may be, of the individual upon whose wages and self-employment income her or his application is based is deemed to be `living with' such individual at the time application for a wife's or husband's benefit is filed, and such individual's widow or widower is deemed to have been living with such individual at the time of such individual's death, if, at such time, any one of the following conditions is met: * * * (c) such individual had at such time been ordered by any court to contribute to the applicant's support. — This condition is met if such individual is legally compelled to contribute to the support of the applicant at the particular time by reason of any order, judgment, or decree of a court of competent jurisdiction, regardless of whether he or she actually made such contribution. In determining the existence of such legal compulsion, any such order, judgment or decree shall be considered as in full force and effect unless it has expired or has been vacated." (Emphasis supplied.)

As plaintiff was not a member of the household of wage earner at the time of his death, nor was she receiving regular contributions from him for her support on that date, the question for our consideration is whether the probation order of the Peoria County Court entered eleven years previous to the date of wage earner's death, brought the plaintiff within the provisions of the Statute.

It was the view of the District Court that it was not necessary for plaintiff to show a support order enforceable against the wage earner at the time of his death; that it was sufficient that a wage earner had been ordered to contribute to plaintiff's support during his life time. In holding this view, the District Court was clearly in error.

It is, of course, a possible construction to say that as the first two clauses of Section 216(h) (2) of the Act referred respectively to "the date of death" and "on such date" while a similar clause was not repeated in or after the third clause, that Congress intended the last clause to be treated differently than the first two. However, reading the three clauses together there is no indication of any intent by Congress to have a time effective as to the third clause which is different from that applicable to the first two clauses.

But more compelling is the contemporaneous construction of the term "living with" by the Agency charged with the administration of the Act. Such construction is entitled to great weight. United States v. American Trucking Associations, Inc., 310 U.S. 534, 549, 60 S.Ct. 1059, 84 L.Ed. 1345; Fawcus Machine Co. v. United States, 282 U.S. 375, 378, 51 S.Ct. 144, 75 L.Ed. 397; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 77...