Opinion
No. 24690
Decided June 13, 1934.
Workmen's compensation — Death benefits — Wife and children presumed wholly dependent, but not conclusively presumed dependent — Section 1465-82, General Code — Wife not wholly dependent unless living with husband at his death — Burden of proof on claimant — Mandamus denied to compel payment to wife living apart from husband.
IN MANDAMUS.
This is an action in mandamus presented to this court upon the pleadings, containing the following salient facts: On July 31, 1918, one Gust Poulos was killed in Ohio while in the course of his employment by an employer who had complied with the Workmen's Compensation Act, it appearing from the petition that the relatrix Parthena Poulos and said Gust Poulos were both subjects of Turkey, who were married in that country some time in the year 1911. They had no children. In 1912 the husband came alone to America for the purpose of finding employment, intending at some time to return to Turkey. Relatrix's petition alleges that at the time of her husband's death he left the relatrix surviving him as his widow, and that there had never been any divorce, legal separation or estrangement between him and the relatrix; that the decedent had made contributions to the relatrix from time to time in variable amounts, and that she was wholly dependent upon him for support. By reason of the fact that Turkey and Greece were at war, and because later Turkey and America were at war, the relatrix, having lost all her possessions, was unable to produce any documentary proof of contributions for her support. After the workman's death the widow remarried in 1920. In September, 1924, the relatrix, through the good offices of foreign consuls, made application for compensation under the Ohio Workmen's Compensation Law, and furnished the commission documentary proof in that respect.
Under such proof, and after a hearing, the respondent commission on May 13, 1933, found the relatrix to be partially dependent upon the decedent, and ordered compensation to be paid her in the total sum of $420, at the rate of $12 per week for 35 weeks. On May 27, 1933, she filed an application for re-consideration of that award, and in June, 1933, the respondent modified its former order, and, again finding relatrix to be partially dependent upon the decedent, ordered compensation to be paid her in the total sum of $2,280, fixing the amount of her dependency at $12 per week for a period of 225 weeks from the date of the death of the decedent, which amount the commission ordered to be paid, less the sum of $420 theretofore awarded. In her petition relatrix alleged that the action of the commission in finding the relatrix to be only partially dependent was not in accordance with law, and constituted a gross abuse of discretion on the part of the respondent. She further alleged that the commission, in violation of Section 1465-82, General Code, deprived relatrix of her rights provided thereunder, and asked for a writ of mandamus commanding the respondent to grant the relatrix the full sum of $5,000, less the amount she had already received under the former awards.
The order of the commission made in June, 1933, granting the last award, contains a finding "that there is no documentary evidence of any contributions or remittances by the deceased to the widow up to the time this country was involved in the World War. Under these facts the commission finds that the widow was a person partially dependent", and, as heretofore stated, fixed the amount of dependency for the period of 225 weeks from the death of the deceased.
The respondent's answer alleges that in the evidence produced before the commission there was none that disclosed that the decedent had contributed to his wife's support for several years prior to his death, that respondent had inquired into all the facts and evidence produced, and after full consideration thereof had found that the relatrix was only partially dependent and had awarded compensation accordingly.
Mr. Robert S. Hayes, for relatrix.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for respondent.
It is the contention of relatrix, the widow of the decedent, that though living apart and in different countries prior to and at the time of her husband's death, she was entitled to a conclusive presumption of total dependency, which is not rebuttable. Section 1465-82, General Code, reads in part as follows:
"5. The following persons shall be presumed to be wholly dependent for support upon a decedent employe:
"(A) A wife upon a husband with whom she lives at the time of his death.
"(B) A child or children under the age of sixteen years * * *.
"In all other cases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury," etc.
Other states having compensation statutes very similar to our own provide that particular dependents, such as wife or children, shall be "conclusively presumed" to be wholly dependent upon the deceased employe. Among such states are Massachusetts, Rhode Island, Michigan, Connecticut and Wisconsin. Fierro's Case, 223 Mass. 378, 111 N.E. 957; Mooradjian's Case, 229 Mass. 521, 118 N.E. 951; Martin v. Narragansett Elec. Lt. Co., (R.I.), 142 A. 225; Kalcic v. Newport Mining Co., 197 Mich. 364, 163 N.W. 962; Klautka v. Stanley Works, 100 Conn. 345, 123 A. 839; Northwestern Iron Co. v. Indus. Comm., 154 Wis. 97, 142 N.W. 271, L.R.A., 1916A, 366, Ann. Cas., 1915B, 877.
It will be noted that, under the foregoing provisions of the Ohio law, the wife and children of the deceased are only presumed to be wholly dependent, and not conclusively presumed to be so, as in other states. But whether the total dependency be one merely presumed or conclusively presumed, in either case, under the provisions of subsection (A), the claimant cannot be held to be wholly dependent unless she be the wife of a husband with whom she lives at the time of his death; and upon that feature the burden of proof rests upon the claimant.
The relatrix was married in 1911. In 1912 her husband left her living abroad and came to this country, where he was killed in 1918. His widow remarried in 1920, and in 1924 applied for compensation for the death of her former husband. The respondent's answer alleged that there was evidence presented to the commission touching the question of dependency and the decedent's contributions to his wife, other than that referred to in relatrix's petition; that there was evidence offered tending to prove that the decedent had not contributed to the claimant's support for several years prior to his death. It further alleged that the commission, upon consideration of all the evidence, found the relatrix to be partially dependent only, and awarded compensation accordingly. The evidence relied on in relatrix's petition, relating to the contribution of the decedent to his wife's support, is very vague, unsatisfactory and largely hearsay. Documentary proof of contribution to his wife could not be made owing to the existence of war between Greece and Turkey, and because records of foreign remittances by banks in this country, if any were made, were not available to the claimant.
In view of the character of the proof offered the commission saw fit to deny her compensation as a wife who was wholly dependent upon her husband during their separation. Whether the wife was living with the husband at the time of his injury, and whether he contributed to her support during their separation, were issues decided adversely to the claimant. Since the claimant has not established a clear legal right as a wholly dependent wife, the writ of mandamus will be denied.
Writ denied.
WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS, BEVIS, ZIMMERMAN and WILKIN, JJ., concur.