Sam Winer & Co. v. Spelts

• Decision Date: 17 June 1976
• Docket Number: No. 2--1275A370,2--1275A370
• Citation: 348 N.E.2d 670,169 Ind.App. 392
• Parties: SAM WINER AND COMPANY, Defendant-Appellant, v. Freeman E. SPELTS and Mary Lou Spelts, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 670

348 N.E.2d 670

169 Ind.App. 392

SAM WINER AND COMPANY, Defendant-Appellant, v. Freeman E. SPELTS and Mary Lou Spelts, Plaintiffs-Appellees.

No. 2--1275A370.

Court of Appeals of Indiana, Second District.

June 17, 1976.

Rehearing Denied July 20, 1976.

Philip E. Byron, Jr., Robert T. Sanders, III, Byron & Daniels, Elkhart, for defendant-appellant.

Robert D. Lee, South Bend, for plaintiffs-appellees.

SULLIVAN, Judge.

Appellant Sam Winer & Company (Winer) is appealing an award of the Industrial Board which granted dependents' benefits to Freeman E. and Mary Lou Spelts. The award is based upon the death of Lester Leroy Spelts, their son.

The sole issue before us depends upon the application or inapplication of Ind.Ann.Stat. 22--3--3--20 (Burns Code Ed.1974):

'Dependency in fact--Marriage as termination of dependency--No reinstatement by divorce.--Total or partial dependents in fact shall include only those persons related to the deceased employee by blood or by marriage, except an unmarried child under the age of eighteen (18) years. Any such person who is actually totally or partially dependent upon the deceased employee is entitled to compensation as such dependent in fact. The right to compensation of any person totally or partially dependent in fact shall be terminated by the marriage of such dependent subsequent to the death of the employee and such dependency shall not be reinstated by divorce.' (Emphasis supplied).

The facts of the case are not in dispute. Freeman and Mary Lou were first married to one another in 1953, and subsequently had three children, one of whom was Lester Leroy Spelts (Lester). The Spelts were divorced in 1958. Shortly afterward, two of the children were placed for adoption and Lester was sent to Virginia to live with Mary Lou's aunt and uncle. Both Freeman and Mary Lou remarried to third parties. In 1972, Lester returned to Indiana and lived with Mary Lou and her second husband for about a year, working and paying room and board to them. In 1973, Lester went to live with Freeman and his then wife, again working and paying room and board. At this time neither Freeman nor Mary Lou were happy with their current marriages so in the fall of 1973, with Lester's encouragement, they left their respective spouses and went together with Lester to Virginia. While in Virginia both Freeman and Lester worked and contributed to the support of the household. The three of them returned to Indiana in March 1974, and again set up housekeeping. Freeman, plagued by a chronic eye disease, was unable to find work, and collected unemployment. Lester obtained employment with Winer. Freeman and Lester pooled their income, while Mary Lou, who was not working, managed the money and maintained the household. On July 25, 1974, Lester was killed in an accident arising out of and in the course of his employment with Winer. Freeman, who had been divorced by his second wife in May 1974 was unmarried at the time. Mary Lou's second marriage ended in divorce in August of 1974, and Freeman and Mary Lou were remarried to each other on March 12, 1975.

Freeman and Mary Lou applied to the Industrial Board for dependents' benefits pursuant to Ind.Ann.Stat. 22--3--3--20 (Burns Code Ed. 1974). The Board found that they were in fact partial dependents of Leroy and ordered Winer to pay compensation benefits of $42.16 per week for 500 weeks.

Winer concedes that at the time of Lester's death Freeman and Mary Lou were partial dependents and thus entitled to benefits. It argues, however, that their remarriage subsequent to Lester's death terminated their right to compensation under 22--3--3--20, supra. The Industrial Board understandably rejected this contention, ruling that the facts of this particular case removed it from the socope of the statute:

'Such contention is without merit and it is ruled Section 38b (22--3--3--20) does not apply in this case where the partial dependents are the natural mother and natural father of the decedent who, subsequent to the decedent's death, remarried each other although at the time of death the natural mother and father were not married to each other but in fact were living with each other and with decedent.'

Winer now argues that the Board erred in this ruling, since the statute is unambiguous and must be applied here. The Spelts agree that a literal construction of 22--3--3--20, supra would result in a termination of their benefits, but urge that the peculiar facts of this case 'coupled with the humane intention of the Act' call for a liberal construction of that section.

We agree fully that the Workmen's Compensation Act should be construed liberally in favor of the employee to effectuate the humane purposes of the Act, Frampton v. Central Indiana Gas Co. (1973), 260 Ind. 249, 297 N.E.2d 425; Motor Dispatch, Inc. v. Snodgrass (3d Dist.1973), Ind.App., 301 N.E.2d 251. But we are not free to construe a statute which is unambiguous. State ex rel. Mental Health Commissioner v. Estate of Lotts (2d Dist.1975), Ind.App., 332 N.E.2d 234, 238; Economy Oil Corp. v. Indiana Dept. of Revenue (1st Dist.1974), Ind.App., 321 N.E.2d 215; Fogle v. Pullman Standard Car Mfg. Co. (1961), 133 Ind.App. 95, 173 N.E.2d 668. As this court said in J. W. Jackson Realty Co. v. Herzberger (1942), 111 Ind.App. 432, 40 N.E.2d 379:

'The rule concerning liberal construction, in favor of the appellee, of the compensation law has no application in a case where there is no room for construction. Under the rule of liberal construction in favor of the employee to carry out the humane purposes of the Act, the Industrial Board and this court are not entitled to distort the law so that compensation will be granted in violation of specific statutory provisions.' 111 Ind.App. at 437, 40 N.E.2d at 380--81.

Under 22--3--20, supra, dependency is determined at the date of death of the employee. Studebaker Corp. v. Anderson (1932), 96 Ind.App. 215, 183 N.E. 408. Once the right to dependent's benefits is established, payments are thereafter terminated if certain conditions enumerated in the statute occur. Studebaker Corp. v. Anderson, supra. Those conditions (e.g., marriage) are absolute. There is no provision in the statute for a re-determination of actual...