Opinion
November 17, 1930.
December 27, 1930.
Workmen's compensation — Husband and wife — Separation — Personal injury sustained by husband — Death — Dependency of wife — Award — Refusal of.
In a claim under the Workmen's Compensation Act to recover for the death of the claimant's husband, there was evidence that the claimant and the decedent, during the first three months following their marriage, lived with the claimant's brother. Thereafter they separated by mutual consent and each returned to the home of their parents. For approximately nine months after the separation, the decedent visited his wife at the home of her parents and at the end of that period he spoke to the claimant about starting housekeeping but she did not leave her parents' home. During the following month the decedent informed his wife that he would not come to see her any more and would not support her, and caused a notice to be inserted in a newspaper published in a nearby town to the effect that he would not be responsible for any debts contracted by his wife after that date. Thereafter they did not correspond with each other and the decedent did not contribute anything to the support of his wife and she did not make any demand on him. The claimant was supported partly by her father and partly by her own earnings. More than two years after their separation, the claimant consulted an attorney with reference to securing a support order upon her husband, but nothing was done in the matter. About a month later the husband was accidentally injured in the course of his employment and as a result thereof died the next day.
In such case there was sufficient evidence to sustain the finding that the widow was not dependent upon her husband for support at the time of his death and an award for the claimant was properly refused.
An employer cannot be required to make compensation except where the fact of actual dependency affirmatively appears.
Appeal No. 40, October T., 1930, by claimant from judgment of C.P., Bucks County, May T., 1929, No. 52, in the case of Sarah A. Allem (Ahlum) v. E.J. Romig Son and Pennsylvania Manufacturers Association Casualty Insurance Company.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and WHITMORE, JJ. Affirmed.
Appeal from refusal of claim by Workmen's Compensation Board. Before SHULL, P.J., 43rd Judicial District, specially presiding.
The facts are stated in the opinion of the Superior Court.
Appeal dismissed. Claimant appealed.
Error assigned was the order of the court.
John L. DuBois, for appellant.
Clarence J. Buckman of Buckman Buckman, for appellee.
Argued November 17, 1930.
Claimant's husband was accidentally injured on June 21, 1928, while in the course of his employment with defendant, and as a result thereof died the next day. The claim made under the Workmen's Compensation Act by his surviving wife on behalf of herself was disallowed by the referee. The compensation board dismissed her appeal and the common pleas sustained the board.
The sole question presented to us is whether the record contains evidence to sustain the finding that the widow was not dependent upon her husband for support at the time of his death. A careful examination of the evidence has convinced us that it sustains the finding of the following facts by the referee: Claimant and decedent were married February 28, 1925, and for the succeeding three months resided with her brother. In June, 1925, by reason of the expected birth of a child, it was agreed that claimant should return to the home of her parents during confinement. Decedent went to live with his parents at Richlandtown, which was about ten miles distant from the home of claimant's parents, and made frequent visits to her at her parents' home until April 17, 1926. The child was born September 2, 1925, and died almost immediately thereafter. In March, 1926, decedent spoke to claimant about starting housekeeping and made arrangements to rent a third floor of a house, but for some reason which did not appear claimant did not leave her parents' home. On April 17, 1926, decedent informed his wife that he would not come to see her any more and would not support her, and on April 21, 1926, caused a notice to be inserted in a newspaper published in a nearby town to the effect that he would not be responsible for any debts contracted by his wife after that date. Thereafter decedent continued to live with his parents until the time of his death, while claimant resided with her parents. Neither of the parties had any correspondence with each other after April, 1926. He did not contribute anything to her support and she did not make any demand on him for the same. Claimant was supported partly by her father and partly by her own earnings, she being employed at times at a clothing factory. In May, 1928, more than two years after their separation claimant consulted an attorney with reference to securing a support order upon her husband, but nothing was done in the matter and he died about a month later. These facts, supported as they are by competent evidence, fully warrant the ultimate conclusion of fact that when the husband died claimant was not actually dependent upon him for support. "The right of claimant was determined on a consideration of facts, a review of which we are not authorized to entertain": Karpati v. Cambria Steel Co., 70 Pa. Super. 202, from which this case is not distinguishable on its facts, in which it was decided that to hold the employer to make compensation it must affirmatively appear that the wife was actually dependent. It seems to us that appellant acquiesced in her husband's repudiation of his legal obligation to support her. This is the real criterion in cases of this character: Creasy v. Phoenix Utilities Co., 276 Pa. 583. The order of the court below sustaining the Workmen's Compensation Board was right.
The judgment is affirmed.