Wright v. Armstrong

Decision Date27 June 1942
Citation163 S.W.2d 78,179 Tenn. 134
PartiesWRIGHT et al. v. ARMSTRONG et al.
CourtTennessee Supreme Court

Appeal from Chancery Court, Shelby County; John E. Swepston Chancellor.

Proceeding under the Workmen's Compensation Act by Melvina Armstrong, claimant, for the death of Arthur Armstrong deceased employee, opposed by W. F. Wright and another employers, and the Standard Accident Insurance Company insurance carrier. From a decree for claimant, the employers and insurance carrier appeal.

Decree modified, and as modified affirmed, and cause remanded.

Shepherd, Owen & Heiskell, of Memphis, for appellant Insurance Company.

Ben W. Kohn, of Memphis, guardian ad litem for appellant Richard Armstrong.

George P. Douglass, of Memphis, Ivy & Nailling, of Osceola, Ark., and Henry Dunivant, guardian ad litem, of Memphis, for appellees.

HICKERSON Special Justice.

Melvina Armstrong was awarded compensation under the Workmen's Compensation Act of Tennessee, Code 1932, § 6851 et seq., against W. F. Wright, J. H. Lopez and Standard Accident Insurance Company by the Chancery Court of Shelby County as the dependent widow of Arthur Armstrong, who was killed in March, 1941, while working for appellants, W. F. Wright and J. H. Lopez. The compensation awarded was decreed to be for the joint use and benefit of Melvina Armstrong and her infant child, Richard Armstrong.

W. F. Wright, J. H. Lopez and Standard Accident Insurance Company defended the suit of Melvina Armstrong on the ground that she was voluntarily living apart from her husband at the time of the injury which caused his death.

Only two questions are presented for the determination of this Court: First, was there any material evidence to support the finding of the trial court that Melvina Armstrong was not living apart from her husband at the time of his injury? And, Second, if Melvina Armstrong is not awarded compensation, what amount should be awarded Richard Armstrong, who is conceded to be the dependent son of Arthur Armstrong and entitled to compensation in some amount?

In an action under the Workmen's Compensation Act of Tennessee, the finding of facts of the trial court will not be disturbed on appeal where the evidence is conflicting. Diamond Coal Company v. Jackson, 156 Tenn. 179, 299 S.W. 802.

Code, Section 6883, 1941 amendment, Pub. Acts 1941, c. 90, § 8, provides:

"Who are dependents, wholly and partial.--For the purposes of this chapter, the following described persons shall be conclusively presumed to be wholly dependent:
"(1) A wife, unless it be shown that she was voluntarily living apart from her husband at the time of his injury, and minor children under the age of sixteen years."

The following facts are established, with no evidence to the contrary: Arthur Armstrong and Melvina Armstrong were married prior to June 2, 1928. They were colored people and worked as tenant farmers in Mississippi County, Arkansas. During the latter part of December, 1929, Arthur Armstrong told his wife he was going to move to another farm a few miles away. She went to visit her brother and when she returned her husband had already moved. No particular effort was made by either party to get back together. They never lived together after she returned from the visit to her brother although they saw each other frequently. Arthur Armstrong supported, to some extent, a son which had been born to them--Richard Armstrong, but he never contributed anything to the support of his wife from the time they separated in 1929 until his death in 1941.

In 1935 Melvina Armstrong entered into a bigamous marriage with Frank Gray and continued to live with him until the death of her husband and until the trial of this case. When she contracted this second marriage she knew she was not divorced from Arthur Armstrong. She stated that she married this second man "because I needed somebody to kind of help me support myself. I just got tired of working." Frank Gray supported her after he married her until the trial of this case.

Arthur Armstrong had also lived with another negro woman in Memphis, Tennessee, for several months prior to his death.

Now, under these uncontroverted facts was petitioner voluntarily living apart from her husband at the time of his death? We think she was. There is some conflict about the cause of the separation of this couple in 1929, but the fact is uncontroverted that she wilfully entered into the bigamous marriage with Frank Gray in 1935, lived with and was supported by him until the death of her husband and was still living with him at the time of the trial of this case and during all that time she made no effort to return to Arthur Armstrong. Regardless of the cause of her separation from Arthur Armstrong she was certainly living apart from him voluntarily "at the time of his injury" and there is no evidence to the contrary. Melvina Armstrong cannot recover for herself.

Since Melvina Armstrong cannot recover as a dependent widow Richard Armstrong will be awarded compensation as the sole dependent of his deceased father. He does not live with...

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