Russell v. Johnson

• Decision Date: 17 June 1942
• Docket Number: 16965.
• Citation: 42 N.E.2d 392,112 Ind.App. 253
• Parties: RUSSELL et al. v. JOHNSON et al.
• Court: Indiana Appellate Court

42 N.E.2d 392

112 Ind.App. 253

RUSSELL et al. v. JOHNSON et al.

No. 16965.

Appellate Court of Indiana, in Banc.

June 17, 1942

Henry L. Humrichouser and Leon Kowalski, both of South Bend, for appellants.

Jones Obenchain & Butler, of South Bend, for appellees.

BEDWELL Judge.

This appeal presents the question of whether the appellants are entitled to compensation under the Workmen's Compensation Act of Indiana, Burns' Ann.St.§ 40-1201 et seq., as dependents of John Russell, deceased.

A majority of the full Industrial Board made a finding and an award denying them compensation as dependents and they have appealed and have assigned, first, that the award of the full board is contrary to law; second, that the award of the full board is contrary to the evidence.

The facts are without dispute and are as follows:

The appellant, Lorrine Russell, whose correct name is Lorrine Harrison, was married to Lance Harrison at Benton Harbor Michigan, on January 9, 1927. To this marriage two children were born, namely, Lance Harrison and Jacqueline Harrison who are named as appellants herein by the names of Lance Russell and Jacqueline Russell. Lance Harrison was born on January 25, 1931, and Jacqueline Harrison on May 7, 1932. About a month after the birth of Jacqueline, and because the husband did not remain at home and buy any food or support the family, Lorrine Harrison took her two children and went to live with an aunt in East St. Louis where she remained about two years and then returned to the home of her father at Eau Clair, Michigan. Mrs. Harrison had known John Russell when she was a child in Union City, Tennessee. In 1935 he came to the home where she was living and asked her and the two children to come to South Bend, Indiana, and live with him. This they did and from 1935 until the death of John Russell on October 22, 1940, with the exception of about three months, they lived together in one home. In South Bend appellant, Lorrine Harrison, used the name of Lorrine Russell and was considered in the community where she lived to be the wife of John Russell. Her children took the name of Russell and went to school under such name. Her father came from Michigan and lived with them in the same household. During all the time appellant, Lorrine Harrison, and her two children lived with John Russell he furnished their sole and only means of support. His wages were turned over to her and used by her in paying house rent, buying groceries and clothing, and supporting the family.

In the summer of 1940 Lorrine Harrison took her two children and went to Chicago and lived about three months with her husband Lance Harrison. She went to her lawful husband because he had requested her to return, and because of the children; but after she went to him in Chicago he failed to support her and the children and she left because he didn't give them any food or clothing; and returned to the home of John Russell who furnished her money to return from Chicago to South Bend. Lorrine Harrison testified that her husband Lance Harrison had another woman, with two children, in Chicago when she went there to live with him. She was living with John Russell and he was supporting her and her two children on October 21, 1940, when he, while in the employ of the appellee, Rieth-Riley Construction Company, suffered an injury as a result of an accident arising out of and in the course of his employment from which he died on October 22, 1940. The evidence disclosed that Lorrine Harrison during all the period mentioned lived in adultery with John Russell; that upon at least one occasion while she was so living her husband Lance Harrison visited at the home and remained all night and knew of the relationship between his wife and John Russell. There is no evidence that he made any objection thereto. There is no evidence whatever of any support furnished any of appellants by Lance Harrison, the husband and father, after the birth of Jacqueline Harrison in 1932.

All facts, except the fact of dependency, were stipulated, and the sole question for determination is whether the appellants, Lance Harrison and Jacqueline Harrison, named herein as Lance Russell and Jacqueline Russell, are entitled to compensation as dependents of John Russell, deceased. Their mother Lorrine Harrison did not appeal to the full Industrial Board from a finding and award of the hearing member denying her compensation, so no question is presented for determination as to her dependency, and appellants are making no claim that she is entitled to recover as a dependent of John Russell.

The appellees who bear the name of Johnson are relatives of John Russell who filed a claim for compensation as his dependents. The hearing member and the full Industrial Board found that they were not dependents; but because their claim was consolidated with the claim of appellants they are named as appellees herein.

The question for determination is one of first impression in this jurisdiction. While similar facts have been presented for determination in a few cases in other jurisdictions, the decisions of the courts therein are not in harmony. The statutes defining "dependency" under the compensation laws of the various states vary in terms. The portion of our own statute which has a bearing upon the question here for determination reads as follows:

"Dependents.--The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee:

"(a) A wife upon a husband * * *.

"(b) A husband, who is both physically and financially incapable of self-support, * * *.

"(c) A child under the age of eighteen (18) years upon the parent with whom he or she is living at the time of the death of such parent.

"(d) A child under eighteen (18) years upon the parent with whom he or she may not be living at the time of the death of such parent, but upon whom, at such time, the laws of the state impose the obligation to support such child.

"(e) A child over the age of eighteen (18) years who is either physically or mentally incapacitated from earning his or her own support, upon a parent with whom he or she is living at the time of the death of such parent, or upon whom the laws of the state, at such time, impose the obligation of the support of such child.

"As used in this section, the term 'child' shall include stepchildren, legally adopted children, posthumous children and acknowledged illegitimate children, but shall not include married children; the term 'parent' shall include step-parents and parents by adoption.

"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 (the) question of partial dependency shall be determined in like manner as of date of the injury. * * *" Acts of 1929, ch. 172, sec. 38, p. 536, Burns' R.S.1933, 1940 Replacement, sec. 40-1403, Sec. 16414, Baldwin's 1934.

The appellant children do not fall within the terms of subdivisions (c) or (d) or (e). If they are entitled to compensation as dependents their right must arise because of the above quoted paragraph of the section making dependency determinable in accordance with the fact, "in all other cases."

In the case of In re Carroll, 1917, 65 Ind.App. 146, 116 N.E. 844, 846, this court was called upon to determine certain questions of dependency under Section 38 of [42 N.E.2d 395] the original Workmen's Compensation Act of 1915, Acts of 1915 p. 392, which contained this provision:

"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; * * *."

This court in construing the meaning and effect of such clause says:

"Our act does not define dependency, and does not specifically indicate who are dependents, except as to persons included within the conclusive presumption of total dependency features of the act. Courts as a rule, in determining questions of dependency and who are dependents, resort to description, to an outlining of the elements, rather than to definition. Stated generally, a dependent is one who looks to another for support and maintenance; one who is in fact dependent--one who relies on another for the reasonable necessities of life. * * *

"Among the elements that are indicia of a state of dependency are an obligation to support, the fact that contributions have been made to that end, that the claimant in any case is shown to have relied on such contributions and their continuing, and the existence of some reasonable grounds as a basis for a probability of their continuance, or of a renewal thereof, if interrupted. We would not be understood as indicating that all these elements must exist in each case, in order that there may be a state of dependency. As a rule, to which there are exceptions, however, the fact that contributions have been made is an essential element of a state of dependency within the meaning of the act."

In the case of Welch v. Welch Aircraft Industries, Inc., 1941, 108 Ind.App. 545, 551, 29 N.E.2d 323, 326 this court construes Section 38, Ch. 172, p. 536, of the Acts of 1929 (Burns' R.S.1933, 1940 Replacement, § 40-1403, § 16414, Baldwin's 1934), and in particular subdivision (c) heretofore quoted, and in the course of such opinion it says:

"This subdivision creates a conclusive presumption of total dependency in favor of a child under 18 years of age upon the parent with whom he or she is living at the time of the death of such parent without regard to the existence of a legal obligation on the part of a surviving parent to support such child or without regard to the fact that the child is being supported either wholly or partially by another. Consequently the legal obligation

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