Sweet v. Sherwood Ice Co.

• Decision Date: 28 March 1917
• Docket Number: No. 367.,367.
• Citation: 40 R.I. 203,100 A. 316
• Parties: SWEET v. SHERWOOD ICE CO.
• Court: Rhode Island Supreme Court

100 A. 316

40 R.I. 203

SWEET

v. SHERWOOD ICE CO.

No. 367.

Supreme Court of Rhode Island.

March 28, 1917.

Appeal from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge.

Proceeding under the Workmen's Compensation Act by Jessie M. Sweet, widow, against the Sherwood Ice Company. Decree of superior court for defendant, and petitioner appeals. Affirmed, remanded, and appeal dismissed.

James J. McCabe and Thomas J. Dorney, both of Providence, for appellant Gardner, Pirce & Thornley, of Providence, for Marietta Wilson. Boss & Barnefield, of Providence, for respondent.

VINCENT, J. This is a proceeding under the Workmen's Compensation Act. The petitioner is the widow of Albert K. Sweet. She seeks to recover compensation for herself and two minor children on account of the death of her husband, which occurred on the 22d day of February, A. D. 1916, during his employment by the respondent company, and arose out of and in the course of such employment.

After the petition was filed, Marietta Wilson, an aunt of the deceased, with whom he lived at the time of the injury and death, and who claimed to be a partial dependent, was ordered, upon motion of the respondent, to enter her appearance and file an answer to the petition, which she accordingly did. No appeal has been taken from the decree of the superior court by Marietta Wilson or by or on behalf of the minor children of the petitioner, and therefore as to them the matter is res adjudicata, and need not be considered.

The only issue raised by the respondent which we need now to discuss is whether the petitioner, Jessie M. Sweet, was dependent upon the earnings of the deceased within the provisions of the Compensation Act. The superior court has found that the petitioner was not a dependent, has filed its findings of fact to that effect, and has entered a decree accordingly. From such decree the petitioner has taken her appeal to this court, setting forth in her reasons of appeal that the superior court erred in finding as a fact that the deceased left no one either wholly or partially dependent upon his earnings at the time of the accident.

The reasons of appeal, although several in number, raise the one question whether the decree and findings of fact of the superior court are contrary to the law and the evidence and the weight thereof; in other words, as the case is now presented to us, was Jessie M. Sweet dependent upon the deceased either totally or partially?

Under the provisions of the Compensation Act a widow may be shown to be a dependent in either of two ways: (1) By way of presumption, if proper evidence exists; or (2) by actual proof of the fact of dependency within the meaning of the law.

The conditions under which the petitioner was living at the time of her husband's death and her relations with him for a long period prior thereto, so far as they bear on the question of dependency, appear to be undisputed. Upon an examination of the evidence we find that she was not living with the deceased at the time of his injury, and had not lived with him since August, 1914. It further appears that on August 18, 1914, the petitioner signed and made oath to a petition for divorce stating that her husband had neglected and refused to provide necessaries for her support for a period of two years. This petition for divorce was duly filed in court, and upon a hearing thereon in the superior court for the county of Kent on March 23, 1915, the petitioner there testified under oath that for two years prior to August, 1914, her husband had done nothing whatever for her support or for the support of her children, and that during that period she had supported herself and children by her own labors and some assistance from neighbors and friends. The petition of divorce was granted upon the ground of nonsupport.

No final decree had been entered at the time of her husband's death. There is also testimony to the effect that the petitioner and her husband continued to live separate and apart following the decision in the suit for divorce, and that she continued to work and support herself and children.

In this state of the testimony it was competent for the superior court to find that the petitioner does not come within the presumption of dependency set forth in the act. Section 7 of article 2 of the Compensation Act (Laws 1911-12, c. 831) provides:

"The following persons shall be conclusively presumed to...