Wright v. American Brake Shoe Co.

• Citation: 47 Del. 299,90 A.2d 681,8 Terry 299
• Court: Delaware Superior Court
• Decision Date: 23 July 1952
• Parties: , 47 Del. 299 WRIGHT v. AMERICAN BRAKE SHOE CO. et al.

Page 681

90 A.2d 681

8 Terry 299, 47 Del. 299

WRIGHT v. AMERICAN BRAKE SHOE CO. et al.

Superior Court of Delaware, New Castle County.

July 23, 1952.

Kempton Wright (employee) died on July 7, 1945 at the age of forty-seven as a result of an injury sustained by him in and arising out of the regular course of his employment with the American Brake Shoe Company of New Castle, Delaware (employer). Subsequent to his death separate claims for compensation under the Workmen's Compensation Law were filed with the Industrial Accident Board by Elsie Wright of Cambridge, Maryland, widow of the decedent; by Dorothy Wright (also known as Dorothy Adkins) who lived with the decedent as his common-law wife for ten years prior to his death; by Dorothy Wright on behalf of Barbara Jane Wright (known also as Barbara Jane Gale) who is the eleven year old daughter of Dorothy Wright but who is not the decedent's daughter, though she was residing with him at the time of his death; and by Martha Wright, mother of the decedent.

The Industrial Accident Board (called Board) set all of the cases down for a hearing on August 16, 1951, in order to determine which of the claimants are entitled to compensation under the law.

The employer moved to dismiss the claims of Elsie Wright, widow, and of Dorothy Wright on behalf of Barbara Jane Wright. It contended under its motion (1) that Elsie Wright, the widow of Kempton Wright, the decedent, was not a dependent of the decedent at the time of his death within the meaning of Section 11 of the Compensation Act since she was not living with him at the time of his death, nor was she actually dependent upon him for support at that time; and (2) that Barbara Jane Wright is not a dependent within the meaning of Section 11 of the Compensation Act, because she is not a child of the decedent.

The Board reserved its decision on the employer's motion to dismiss, and heard testimony relating to the application of each claimant.

In relation to the petition of the claimant, Elsie Wright, widow, it appears from the testimony that she married Kempton Wright, the decedent, in 1924; that several children were born during wedlock, all of whom are past the age of sixteen years. In 1929, under circumstances peculiarly within the knowledge of Elsie Wright and her husband, they separated. Mrs. Wright testified that the separation was, in effect, a desertion by her husband. She testified that the only contact she had with him after the separation in 1929 occurred in 1940, at which time she applied to the Circuit Court in Dorchester County, Maryland, for a support order, which was granted. It appears that only two payments were made by her husband under this order. In 1942 a warrant was issued by the same Court charging her husband with nonsupport, but the warrant was never served for the reason that he was not to be found within the jurisdiction. Thereafter, it appears that Mrs. Wright, by her own admission, made no further effort to contact her husband other than occasionally to report to the Sheriff of Dorchester County, Maryland, that she had not been able to discover where he was living. It further appears that in 1941 Kempton Wright set up housekeeping with Dorothy Adkins (also known as Dorothy Wright), whom he held out to be his wife and whose daughter, Barbara Jane, at that time one year old, he accepted as his own. The decedent, Dorothy Adkins, and Barbara Jane lived together continuously until the decedent's death in July, 1951. From 1941 until the winter of 1951 they lived at Sixth and West Avenue, Holloway Terrace, New Castle, Delaware. They later moved on Marsh Road in Brandywine Hundred, New Castle, Delaware. It is clear from the evidence that the claimant, Elsie Wright, did not contact her husband nor receive any support from him for at least ten years prior to the date of his death. The decedent's sister, Oneida Sinclair, testified that she had advised Mrs Wright sometime in the summer of 1946 that her husband was living in Holloway Terrace. There was further testimony by Dorothy Adkins to the effect that Kempton Wright received mail from his daughter, who is also the daughter of the claimant, Elsie Wright, and who resides close to the claimant in Cambridge, Maryland. During this period of time, between 1940 and 1951, the claimant had been working and earning a salary approximately twenty dollars a week, and, when not receiving from her work sufficient funds to support her, she obtained donations from time to time from certain charitable organizations to supplement her necessary living expenses.

In relation to the petition of the claimant, Barbara Jane Wright, the daughter of Dorothy Adkins, it appears that Barbara Jane lived in the home of the decedent, along with her mother, continuously from 1941 until the date of his death, July 7, 1951. Barbara Jane always used the name of Wright, and was known by no other name by her playmates, in her school and in her church. The decedent paid for all of Barbara's clothes, food, medical expenses, Christmas toys and birthday presents, and in all other respects treated her as a father. It further appears that Barbara Jane had no knowledge of the fact that her mother and Kempton Wright had never married, and that she was not the child of Kempton Wright.

The pertinent provisions of the Workmen's Compensation Act are as follows:

Section 11, Subdivision 9, Chapter 175 of the Revised Code of 1935:

'No compensation shall be payable under this section to a widow, unless she was living with her deceased husband at the time of his death or was then actually dependent upon him for support, but in such case, compensation shall be distributed to the persons who would be dependents in case there were no widow.'

Section 11, Subdivision 1, Chapter 175 of the Revised Code of 1935 as amended by 47 Del.Laws, c. 340:

'To the child or children, if there be no widow nor widower entitled to compensation, thirty percentum (30%) of wages of deceased, with ten percentum (10%) additional for each child in excess of two, with a maximum of sixty-five percentum (65%) to be paid to their guardian.'

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'The terms 'child' and 'children' shall include step-children and adopted children and children to whom the deceased stood in loco parentis, if members of the decedent's household at the time of his death, and shall include posthumous children, but shall not include married children.'

The Board upon a consideration of all of the testimony in the light of Section 11, aforesaid, determined the factual issues in respect to the petition of Elsie Wright, widow, as follows:

(1) That she was not living with her deceased husband at the time of his death.

(2) That she was not then actually dependent upon him for support.

Based upon the foregoing findings the Board concluded that Elsie Wright, widow, was not entitled to compensation under the provisions of Section 11, aforesaid, and, in accordance therewith, entered an order under which her petition was dismissed.

As to the petition of Barbara Jane Wright, the Board concluded, upon a consideration of the testimony in the light of Section 11 aforesaid, that the decedent stood in loco parentis to her, and that by reason thereof she was entitled to compensation under the provisions of the act. Accordingly, the Board entered an award of compensation in her behalf.

The petition of Martha Wright, moth...