Welch v. Welch Aircraft Industries

• Decision Date: 14 October 1940
• Docket Number: 16615.
• Citation: 29 N.E.2d 323,108 Ind.App. 545
• Parties: WELCH et al. v. WELCH AIRCRAFT INDUSTRIES, Inc., et al.
• Court: Indiana Appellate Court

29 N.E.2d 323

108 Ind.App. 545

WELCH et al. v. WELCH AIRCRAFT INDUSTRIES, Inc., et al.

No. 16615.

Appellate Court of Indiana, in Banc.

October 14, 1940

Hammerschmidt & Johnson and Henry L. Humrichouser, all of South Bend for appellants.

James L. Murray, of Indianapolis, for appellee.

LAYMON Presiding Judge.

Appellants John W. Welch and Drina E. Welch, husband and daughter respectively, sought compensation as dependents of Lenna J Welch on account of her death which occurred on June 12 1939, by reason of an accident alleged to have arisen out of and in the course of her employment with appellee. The Full Industrial Board, upon review, found:

"That on June 11, 1939, while in the employ of the defendant, Welch Aircraft Industries, Inc., one Lenna J. Welch suffered an injury as the result of an accident arising out of and in the course of her employment, of which the defendant had knowledge; that the average weekly wage of the said Lenna J. Welch was $25.00; that defendant did not furnish medical attention; that the accidental injury of the said Lenna J. Welch resulted in her death on June 12, 1939, that defendant has not paid the statutory $150 burial expense.

"And the Full Industrial Board by a majority of its members further finds that plaintiff John W. Welch, husband of the said Lenna J. Welch, was not physically and financially incapacitated at the time of the death of Lenna J. Welch, and was not a dependent wholly or partially upon the said Lenna J. Welch for support.

"And the Full Industrial Board further finds by a majority of its members that Drina E. Welch, daughter of Lenna J. Welch, and under the age of 18 years, was not wholly dependent upon the said Lenna J. Welch for support.

"And the Full Industrial Board further finds that on September 22, 1939, plaintiffs, John W. Welch and Drina E. Welch, filed their application for the adjustment of a claim for compensation, alleging that they were wholly dependent upon the said Lenna J. Welch for support.

"And the Full Industrial Board, by a majority of its members, now finds for the plaintiffs on their application, in that the accident and death of the said Lenna J. Welch arose out of and was in the course of her employment, and further finds for the defendants on plaintiffs' application, that the plaintiffs, John W. Welch and Drina E. Welch, were not wholly dependent upon the said Lenna J. Welch at the time of her death."

Upon this finding the board denied compensation to both claimants, and they appealed, assigning as error that the award is contrary to law. Appellants assert error of the board in finding that John W. Welch and Drina E. Welch, or either of them, were not wholly dependent upon the deceased at the time of her death.

The statute involved provides (Sec. 401403, Burns' Indiana Statutes Ann.1933, Sec. 16414, Baldwin's Statutes, 1934):

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

"(a) A wife upon a husband with whom she is living at the time of his death, or upon whom the laws of the state impose the obligation of her support at such time.

"(b) A husband, who is both physically and financially incapable of self-support, upon his wife with whom he is living at the time of her death.

"(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. If there is more than one (1) person wholly dependent, the death benefit shall be divided equally among them; and persons partially dependent shall receive no part thereof."

In view of the statute it becomes necessary to determine first whether or not appellants, or either of them, fall within any of the classes...