Opinion
March 10, 1937.
March 15, 1937.
Workmen's compensation — Dependents — Wife — Separation from husband — Continuance of support.
A wife is dependent upon her husband, within the meaning of the Workmen's Compensation Act, even though she is separated from him, where she continues to receive support, whether wholly or in part, unless the separation amounts to a repudiation of the husband's legal obligation and is acquiesced in by the wife.
Appeal, No. 77, Oct. T., 1936, from judgment of C.P. Schuylkill Co., Sept. T., 1935, No. 83, in case of Mrs. Tessie Beaver v. Hazle Brook Coal Company.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Judgment affirmed.
Appeal from award of Workmen's Compensation Board.
Appeal dismissed and judgment entered for claimant, before HICKS, P.J., HOUCK and PALMER, JJ., opinion by PALMER, J., as follows:
This is an appeal by the defendant company from the Workmen's Compensation Board affirming an award to Tessie Beaver and one minor child, Doris Beaver, made by Referee Clayton amounting to $6,553.39.
That Tessie Beaver did not prove that she was actually dependent upon Ray Beaver, her husband, for support on March 8, 1934, at which time he sustained an injury causing his death, is the sole ground upon which the defendant's counsel rests for a reversal of the action of the compensation authorities.
It is admitted that on March 8, 1934, the claimant was not living with her husband, Ray Beaver, now deceased.
On May 11, 1932, Ray Beaver withdrew from their common domicile where together with the claimant's parents they had been residing. Later, she arrested him on a charge of non-support and on July 1, 1932, this Court, upon hearing, directed him to pay to his wife, Tessie Beaver, $15.00 per month for the support of herself and two children.
This order was in existence on March 8, 1934, the day of his death.
The testimony shows that he did not comply strictly with the order, his payments to her averaging about Six Dollars a month. In some letters to her he acknowledged his failure to comply, and promised to make compliance with the order.
In Creasy v. Phoenix Utilities Co., 276 Pa. 583, 585, our Supreme Court says: "If the wife continues to receive support, whether wholly or in part, she continues to be a dependent within the meaning of the statute, unless the separation amounts to a repudiation of the husband's legal obligation acquiesced in by the wife."
In the case at bar, the evidence shows that the claimant was receiving support from the husband at the time of his death, and that after the separation he did not perform his obligation to support her but without her acquiescence as is evidenced by the action for support brought by her.
It follows that there is competent evidence in the record sustaining the finding of fact made by the referee and the Board that the claimant was actually dependent upon her husband for support at the time of his death.
Defendant appealed. Errors assigned were dismissal of exceptions to decision of board and entry of judgment.
P.B. Roads, for appellant.
Roger J. Dever, for appellee.
Submitted March 10, 1937.
The claim petition in this case was originally filed against Jeddo Highland Coal Company. By agreement of the parties (8a-9a) it was amended so as to present the claim against Hazle Brook Coal Company.
The judgment is affirmed on the opinion of Judge PALMER of the court below.