Vigo American Clay Co. v. Kelley

• Decision Date: 09 April 1925
• Docket Number: No. 12149.,12149.
• Citation: Vigo American Clay Co. v. Kelley, 82 Ind.App. 675, 147 N.E. 301 (Ind. App. 1925)
• Parties: VIGO AMERICAN CLAY CO. v. KELLEY.
• Court: Indiana Appellate Court

82 Ind.App. 675

147 N.E. 301

VIGO AMERICAN CLAY CO.

v.KELLEY.

No. 12149.

Appellate Court of Indiana, Division No. 1.

April 9, 1925.

Appeal from Industrial Board.

Proceedings by Frank A. Kelley, guardian of Laura Marie Johnson, for an award under the Workmen's Compensation Act for the death of Otis Johnson, opposed by Vigo American Clay Company, employer. From an order of the Industrial Board granting compensation, employer appeals. Affirmed.

Joseph W. Hutchinson, of Indianapolis, for appellant.

Miller & Kelley, of Terre Haute, for appellee.

ENLOE, J.

The facts of this case, and concerning which there is no dispute in this court, are as follows: On the 18th day of April, 1924, one Otis Johnson, an employee of appellant, came to his death by accident arising out of and in the course of his employment on said day; that said Johnson was a widower, his wife having died early in the year 1919; that at the time of her death said wife left surviving her her husband, said Otis Johnson, and one child, Laura Marie Johnson, then only a few days old; that after the death of said mother, said child was at once taken to the home of one Homer Hunter, where she has since lived; that said Hunter has supplied her with food and clothing since she has been in his home, but never took any steps towards legally adopting said child; that since said child has been in the home of said Hunter her father has contributed nothing towards her support; that after the death of said father said Frank A. Kelley was duly appointed as guardian for said child, and as such, filed an application for an award of compensation. The Industrial Board made an award of compensation, as asked, from which order this appeal is prosecuted.

[1][2] The question for decision in this case, upon the foregoing facts, is:

“Was Laura Marie Johnson, ward of appellee, on the 18th day of April, 1924, a dependent upon her father, Otis Johnson, within the provisions of clause D, of section 38 of our Workmen's Compensation Act?”

Section 38 of said act, as amended by Acts 1919, c. 57, § 1, so far as the same is involved in this case, is as follows:

“The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee: *** (d) a child under eighteen years upon a 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.”

By express...