Opinion
July 23, 1952.
TERRY, J., sitting.
Henry A. Wise, Jr., for Elsie Wright, Claimant Below, Appellant.
William H. Bennethum (of the firm of Morford, Bennethum, Marvel and Cooch) for American Brake Shoe Company, Employer Below, Appellee. Robert O'Hora (of Melson and O'Hora) for Dorothy Wright and Dorothy Wright on behalf of Barbara Jane Wright, Claimants Below, Appellees.
Martha Wright did not appear in this proceeding, nor was she represented by counsel.
An appeal from the Industrial Accident Board pertaining to certain provisions of the Workmen's Compensation Law, Chapter 175, Revised Code of Delaware (1935).
Superior Court for New Castle County, No. 916, Civil Action, 1951.
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 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 92) 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."
* * * * * *
"The terms `child' and `children' shall include stepchildren 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 post-humous 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, mother, was dismissed by the Board because of the lack of proof of dependency on her part under subd. 8 of the act. An award in the amount of $225 was entered by the Board in favor of Dorothy Wright (Adkins) for burial expenses, in accordance with Section 9 of the act.
Elsie Wright, widow aforesaid, has filed this appeal, under which she contends that the Board committed error in dismissing her petition for compensation and at the same time in granting to Barbara Jane Wright an award of compensation as a dependent child. She now seeks an order from this Court reversing the decision below, together with an order directing that the Board enter an award of compensation to her as widow of Kempton Wright, in accordance with the provisions of the Compensation Act. The Board's action in relation to the petitions of Martha Wright and Dorothy Wright (Adkins) is not contested in this appeal.
The sole and controlling question to be determined is whether or not Elsie Wright, the widow, was actually dependent upon her husband at the time of his death within the meaning of Section 11, aforesaid. The claimant suggests that the term "actual dependency" be given a broad meaning, such as to say that a wife's continued effort without success to collect support from her husband prior to his death (they living apart from each other) would be equivalent to the actual receipt by her of support from him. Citing Berman v. George J. Blair Co., 137 Pa. Super. 193, 8 A.2d 731; Binkley v. Stone Webster Engineering Corp., 156 Pa. Super. 381, 40 A.2d 132. Compare Koeppel v. E.I. du Pont de Nemours Co., 7 W.W. Harr. 369, 183 A. 516.
I think that the showing of an effort by a wife to obtain support from her husband who has deserted her without good cause is, of course, an element of proof to be considered. Yet, standing alone, such is by no means determinative of the question. Ordinarily, dependency is evidenced by the receipt by the wife of at least some support from her husband, as the separation may be by consent under circumstances which amount to a repudiation of the husband's legal obligations acquiesced in by his wife; or her conduct may have been such as to relieve her husband from all liability for her support.
The term "actually dependent" referred to under Section 11 of our act relates to the time of death, and such dependency must be affirmatively established as a fact in any case by a claimant before an award of compensation can be entered.
In cases such as the present, where the wife is living apart from her husband, the term "actually dependent" does not mean sole and exclusive support, for, if the wife continues to receive support, whether wholly or in part, she continues to be "actually dependent" within the meaning of Section 11 of the act. The determination of the term "actually dependent", therefore, is a question of fact, and cannot be determined alone by a consideration of moral or legal obligations on the part of the husband to support his wife; it concerns actual contributions made by the husband to the wife, which were in point of fact relied upon by her as a means of living. The term as used in our statute does not relate to past dependency, nor a possible future dependency. It speaks of the reasonable present, and the issue thereof relates solely to the time of the death of the employee. Children's Bureau v. Nissen, 3 Terry 209, 29 A.2d 603.
As a prelude to stating my thoughts concerning the merits of this appeal, I should say that this Court moves with prudent caution in reversing a finding of fact by the Board below. We never disturb such a finding, if there is evidence in the record from which its conclusions could have been fairly and reasonably drawn. Gooden v. Mitchell, 2 Terry 301, 21 A.2d 197; Rudnick v. White Bros., 7 Boyce 576, 109 A. 881; Children's Bureau v. Nissen, 3 Terry 209, 29 A.2d 603. The reason underlying this rule of caution is premised upon the fact that the Board below sees and hears the witnesses and is, therefore, better able to determine the credit and weight to be given their testimony. Le Tourneau v. Consolidated Fisheries Co., 4 Terry 540, 51 A.2d 862.
The enactment of our Workmen's Compensation Act clearly connotes our advancement in the field of social legislation. Our judicial interpretations of the act in the past evidences a clear indication that its purpose cannot be served unless it be construed with marked liberality. The underlying intent is not predicated upon charitable purposes, and the public interest cannot be served if the decisions thereunder are based upon uncertain evidence or upon sympathy alone.
Now the question is, does the record in reference to the petitions presented contain sufficient testimony from which the Board's conclusion could have been fairly and reasonably drawn?
Necessity does not require a detailed review of the testimony at this time. It should suffice to say that Elsie Wright, the decedent's widow, never obtained any manner of support from him for the period of ten years prior to his death. As previously stated, the existence of a legal or moral obligation upon the deceased to support his wife is not the sole criterion in the determination of actual dependency, and her effort to collect support by the exercise of legal process is but an element to be considered under all the circumstances presented. Her contention in this respect, nevertheless, must also be viewed in the light of the testimony that in 1946 she was told that her husband at that time resided at Holloway Terrace, New Castle, Delaware, and she apparently made no effort at that time, or since, to have him arrested for nonsupport.
It is my conclusion that the Board's finding that Elsie Wright was not actually dependent upon the decedent for support at the time of his death was not only a fair and reasonable conclusion from all the testimony, but indeed a proper one. Likewise, the same may be said regarding the Board's finding to the effect that the decedent stood in loco parentis to Barbara Jane Wright.
The Board's decision insofar as it relates to the dismissal of the petition of Elsie Wright, widow, is affirmed. The Board's decision insofar as it relates to the petition of Barbara Jane Wright, and the subsequent award of compensation to her, is likewise affirmed.
An order will be entered accordingly.