Wawrinchak v. U.S. Steel Corp., Gary Works

Decision Date16 March 1971
Docket NumberNo. 670A97,No. 2,670A97,2
Citation267 N.E.2d 395,148 Ind.App. 444
PartiesAmman WAWRINCHAK, by her legal guardian, Florence Schulze and Fevronia Vavrinchak a/k/a Wawrinchak, Appellants, v. UNITED STATES STEEL CORPORATION, GARY WORKS, Appellee. . Division
CourtIndiana Appellate Court

Lucas, Clifford & Wildermuth by James J. Nagy, Gary, for appellants.

Douglas F. Stevenson, Hackbert, Rooks, Pitts, Fullager & Poust, Chicago, Ill., for appellee.

STATON, Judge.

This is an appeal from an award of the Full Industrial Board which dismisses the claim of the appellant. Four (4) errors are urged by the appellant. The first error and the second error shall be treated together since both deal with the concept of dependency. Appellant's error one (1) and two (2) are as follows:

'1) That the findings of fact by the Full Industrial Board that the appellant, plaintiff below, failed to show any dependency, is in error in that the Full Industrial Board failed to find facts sufficient to support its award.'

'2) That the findings of the Full Industrial Board is in error in that it failed to make any findings of fact as to whether or not the appellant, plaintiff below, was the widow of the deceased, or whether or not the appellant, plaintiff below, was legally entitled to support from the deceased employe.'

Both errors urged above by the appellant are without merit. No evidence of dependency was offered. Appellant did establish that she was married to the deceased in 1924, but this does not standing alone establish dependency. The petitioner did not testify nor was her deposition taken. Petitioner's affidavit which was executed by her in Russia discloses that over thirty-eight (38) years ago the deceased left Russia to seek employment in the United States. During that thirty-eight (38) years, the deceased sent only one (1) post card and a picture to the petitioner. This occurred in 1957 which was approximately eight (8) years before his death. There is evidence that the deceased made a trip to Europe in 1946 but did not contact or attempt to visit the petitioner, his wife. There appears to have been no attempt on the part of the petitioner: to establish payments of money to her by deceased; to establish regular correspondence with the deceased; to establish why there was such a long period of separation and silence; to establish any intent on her part to rejoin her husband in the United States; to establish that she was free from any fault for the long period of separation and living apart as well as many other simple facts which all tend to establish dependency under the law. The question before this court in Brown v. Templeton Coal Co. (1922), 79 Ind.App. 244, 137 N.E. 724, was whether 'laws of the state, at the time of death of William Brown, (and under the facts established by the evidence), impose upon him the obligation to support his wife?' The evidence in Brown, supra, is much more compelling than the cause now under consideration. In Brown, supra, the deceased had sent semi-monthly payments to his wife in Scotland from 1904 to 1918. He sent no payments from 1918 until the date of his death, November 16, 1920. He had requested that his wife come and live with him in Indiana, but she refused. This court held in Brown, supra, that: 'It is a well-settled rule that a wife who voluntarily, and without justification, lives apart from her husband cannot compel him to support her. We hold that under the facts of this case the laws of Indiana did not, at the time of the death of William Brown, impose upon him the obligation to support appellant.'

While discussing the evidence in Jelicic v. Vermillion Coal Co. (1924), 81 Ind.App. 675, 680, 144 N.E. 38, this court observed that '* * * no fact is found which explains the conduct of the appellant in living apart from her husband for more than seven years prior to his death. In face of the burden resting on her to establish her right to receive compensation, we may not assume that her conduct in that regard was attributable to the fault of her husband, and thereby conclude that he was under a legal obligation to support appellant by virtue of the laws of this state, notwithstanding her absence in a foreign land for more than seven years. This is an accord with the well-established rule that a party claiming a right conferred by statute, must bring himself wholly and clearly within its provisions before he can enforce it.' (Court citing Stafford v. St. John (1904), 164 Ind. 277, 73 N.E. 596; Board of Com'rs v. Jarnecke (1905), 164 Ind. 658, 74 N.E. 520; Woodward v. State (1910), 174 Ind. 743, 93 N.E. 169.)

Again this court in Inland Steel Co. v. Nan (1925), 83 Ind.App. 673, 149 N.E. 576, stated: 'The undisputed evidence shows that said appellee left for Europe in April, 1923, and at the time of the death of her husband, she was living separate and apart from him. In her application for compensation, she gives her residence as Roumania. Whether she intended to return to her husband or whether the separation was final does not appear. It does not appear by competent evidence that appellee had not remarried. The only evidence that she was in any way dependent upon her husband for support was by said John Pora to the effect that he forwarded money to the appellee. When or how much does not appear. Such evidence is wholly insufficient for the purpose for which offered.'

The evidence submitted by the petitioner is insufficient to establish the basis of an inference for a showing of dependency.

The appellant's error no. three (3) urges:

'That the Full Board erred in dismissing the Form No. 10 application of the appellant, plaintiff-below, on the grounds that her application was filed on April 3, 1969, and the deceased died on the 17th day of January, 1965, for the reason that a Form No. 10 application had been filed on the 30th day of December, 1965, wherein the appellant, plaintiff-below was named and joined as a party, thereby tolling the statute of limitations.'

The record shows that John Wawrinchak died on January 17, 1965. While in the course of his employment, he was cleaning pipes and heating them with a torch which set his clothes on fire and caused his death. He suffered burns over his entire body. Anna Wawrinchak, by her legal guardian, Florence Schulze, filed her Form 10 with the Industrial Board of Indiana on December 30, 1965. At paragraph 3 of the Form 10, the following is found:

'3. Names and addreses of all other parties, if any, to this application, and the reason why such parties are joined. (The foregoing is printed on the Form 10 and the following was inserted by the applicant:) A woman claims to be the widow of the deceased. This woman now resides in Russia and her address is unknown but she is represented by Burton D. Wechsler, 504 Broadway, Gary, Indiana.'

No appearance or pleading of any nature was ever filed by the interested party referred to in paragraph 3 or by her attorney. The record discloses that the attorney for Anna Wawrinchak is also the attorney for Fevronia Wawrinchak. Both applicants having conflicting interests in the matter pending before the Industrial Board. Anna Wawrinchak did not present or offer any evidence on her application for compensation. The appellant filed a separate application on April 3, 1969 which was over three (3) years after the filing of Anna Wawrinchak's application. The Industrial Board of Indiana makes its own rules of procedure and is not bound by anything in our civil code or the common law. Terre Haute Paper Company v. Price, 113 Ind.App. 578, 584, 47 N.E.2d 166 (1943); Davis v. Webster & Auto Owners Ins. Co., 136 Ind.App. 286, 198 N.E.2d 883 (1964), (rehearing denied). These rules permit a person to be joined as a party defendant who does not voluntarily allow herself to be joined as a party plaintiff. The rules are very liberal and fully set out in Burns' Administrative Rules and Regulations (40---1510)--4 and (40--1510)--5. See also § 40--1503 and § 40--1506, Burns' Ind.Stat. Annotated. The appellant chose not to follow them. We find no error committed by the Industrial Board.

Appellant's error No. four (4) concerns itself with the application of the Acts of 1929, ch. 172, § 24, p. 536, § 40--1224, Burns' Ind.Stat. Annotated. (1965 Replacement).

The finding of the Full Industrial Board as it relates to the statute is as follows: '* * * and further finds that the application on behalf of said plaintiff was filed on April 3, 1969, while the death of the employee was the 17th day of January, 1965.'

The award of the Full Board as the same pertains to the statute of limitations question is as follows:

'IT IS FURTHER ORDERED that the Application Form 10 for the adjustment of claim for compensation, filed on the 3rd day of April, 1969 by plaintiff Fevronia Vavrinchak, a/k/a Wawrinchak, should be, and the same is hereby dismissed.'

The appellant's assignment of error no. four (4) is as follows:

'That the Full Board erred in dismissing the Form No. 10 Application of the Appellant, plaintiff below, on the grounds that her application was filed on April 30, 1969, and the deceased died on the 17th day of January, 1965, for the reason that at no time prior to the introduction of evidence did the appellee, defendant below, orally or in writing, raised the issue of the statute of limitations and therefore waived this defense and the defendant stipulated and agreed before the individual hearing member that the only issue presented for determination was which Plaintiff, if any, was entitled to the death benefits under the Indiana Workmen's Compensation Act.'

The appellant is actually stating two (2) errors in his assignment of error no. four (4),...

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