81 Ind. App. 675 | Ind. Ct. App. | 1924
Appellant seeks to reverse an award in which she was denied compensation against appellee, based on the following finding of facts:
“And the full Board, having heard the argument of counsel, having reviewed the evidence and being duly advised in the premises, finds that on July 20, 1921, one Vide Jelicic was in the employment of the defendant at an average weekly wage of $24.00; that on said date the said Vide Jelicic received a personal injury by an accident arising out of and in the course of his employment, of which the defendant had knowledge; that said injury resulted in the death of the said Vide Jelicic on August 1, 1921, of which the defendant had knowledge; that at the time of the injury and death of said Vide Jelicic, the said Vide Jelicic left surviving him Joka Jelicic, his widow, and Djuka Jelicic, his minor*678 daughter, who were at said time living in the Kingdom of the Serbs, Croats and Slovenes; that the said Djuka Jelicic died on April 18, 1922; that the said Vide Jelicic and his wife and daughter had been living apart since January 23, 1914; that up to 1917 the said Vide Jelicic had sent to his wife, Joka Jelicic, the sum of $1,650.00; that the said Joka Jelicic last heard of her husband, Vide Jelicic, on April 13, 1921; that, at the time of the injury and death of said Vide Jelicic, the said Joka Jelicic was not dependent upon him for her support; that the injury and death of the said Vide Jelicic was not due to his wilful misconduct or wilful disobedience of any orders of the defendant; that the defendant has paid $100.00 of the burial expenses of the said Vide Jelicic.”
Appellant’s assignment of error contains eleven specifications, but all are covered by the first, as it presents the sufficiency of the facts found to sustain the award, and the sufficiency of the evidence to sustain the finding of facts. Acts 1917 p. 154, §8020s2 Burns’ Supp. 1921. We shall first consider the sufficiency of the facts found to sustain the award denying compensation to appellant, as the widow of the deceased employee, Vide Jelicic. Under the law as it has existed since 1919, three classes of widows of deceased employees are entitled to receive compensation, as dependents, where facts are found showing liability, viz.: (1) Those living with their husbands at the time of their deaths; (2) Those not living with their husbands at the time of their deaths, but dependent upon them for support; (3) Those not living with their husbands at the time-of their deaths, and not dependent upon them for support, but who nevertheless were entitled to support from their husbands at the time of their deaths by virtue of the laws of the state. Acts 1919 p. 165, §8020v1 Burns’ Supp. 1921; Collwell v.
“The following persons shall be conclusively presumed to be wholly dependent for support on a deceased employee:
(a) A wife upon her husband with whom she is living at the time of his death, or upon whom the laws of the state impose the obligation of her support at such time. * * *” (Our italics) Acts 1919 p. 165, §8020v1 Burns’ Supp. 1921.
Whether a wife is living with her husband at the time of his death involves a conclusion of fact, but whether the laws of the state impose an obligation upon him to support her at such time involves a conclusion of law, as its determination requires an application of abstract principles of law to the facts as they are found to exist. Lagler v. Roch (1914), 57 Ind. App. 79; Cable Co. v. McElhoe (1915), 58 Ind. App. 637. The burden of proving the facts which would warrant such a conclusion of law was upon
The only other question before us relates to the sufficiency of the evidence to sustain the finding. Appellant in the propositions or points of her brief has not set out any ultimate fact which she claims is stated in the finding, but not established by the evidence, nor has she set out any such fact which she claims is established by the evidence, but not stated in the finding. An investigation, however, discloses some evidence to sustain every ultimate fact expressly found, by being stated in the finding, or impliedly found, by being omitted therefrom. This is true, notwithstanding the variance between the evidence and finding as to when appellant last heard of or from her husband, as this, at most, is a mere evidential fact. True, some of such ultimate facts appear to be based upon inferences, but, as they are reasonable, we must accept such facts as true on appeal, although contrary inferences may be equally as reasonable, and such as we would have been more inclined to draw, had the questions been submitted to us as original ones. City of Linton v. Jones (1921), 75 Ind. App. 320; Utilities Coal Co. v. Herr (1921), 76 Ind. App. 312. In reaching this conclusion, we note that the only evidence of facts on which the Industrial Board could have based a conclusion as to whether or not the laws of this state imposed an obligation upon appellant’s husband to support her at the time of his death was given by appellant herself. It is significant that she did not give any evidence of misconduct on the part of her husband which excused