102 So. 44 | Ala. | 1924
Certiorari with bill of exceptions to review the finding and decree of the circuit court denying compensation to appellant under the Workmen's Compensation Act. The theory of appellant's case is thus expressed in the outset of her brief: A widow who has been wrongfully deserted by her deceased husband and who was involuntarily living separate and apart from him at the time of his death, is entitled to receive compensation from his employer under the provisions of the act, even though he was not contributing to her support in any way at the time of his death. We regret our inability to construe the statute as it must be construed to make appellant's claim of compensation effectual, or rather, we will say, the statute has been so framed as, very plainly, to exclude appellant in her circumstances from its benefits.
Appellant and the deceased employee, Curtis Johnson, were man and wife, but 10 years or more before his death Curtis had voluntary and wrongfully abandoned appellant, and had entered into a bigamous marriage with one Georgia, who now claims to be his widow. During these years appellant *150 and her said husband lived apart and he contributed nothing to her support. These conclusions are in agreement with the findings of the circuit court as shown by the record.
By statute it is provided (Acts 1919, p. 217):
"14. Who are dependents, and allowances to each. — (1) Wifeand children conclusively presumed wholly dependent; when. For the purposes of this act the following described persons shall be conclusively presumed to be wholly dependent:
"(a) Wife, unless it be known [meaning 'shown'] that she was voluntarily living apart from her husband at the time of his injury or death, or unless it be shown she was not married to the deceased at the time of the accident or for a reasonable period prior to his death, or unless it be shown that the husband was not in any way contributing to her support."
Appellant, as we have in effect already said, was not voluntarily living apart from her husband — so far as she was concerned her separation from him was involuntary. But she had all along been the lawful wife of deceased. So then the only question presented is, what did the Legislature intend when it adopted its concluding alternative "unless it be shown that the husband was not in any way contributing to her support?" If the way were open to us we would prefer to hold, as did the Supreme Court of Ohio in Industrial Commission v. Dell,
The cases from other jurisdictions have contributed nothing to our consideration of the case in hand, for nowhere else, so far as we are informed, is there a statute like that of this state in the particular in question. It will be found upon examination that elsewhere the courts have been left to formulate their own proper definitions of dependency, whereas in this state the Legislature has defined dependency in its own unmistakable language. It follows that the judgment of the trial court, denying compensation to appellant, must be affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.