Muncie Foundry & Machine Co. v. Coffee

66 Ind. App. 405 | Ind. Ct. App. | 1917

Dausman, J.

— Iii May, 1916, and for some time prior thereto, "Wesley Coffee was a resident of Mound City, Illinois. Unable to find employment in his home town, he came to Muncie, Indiana, in said month, and immediately commenced working for appellant. ' He continued to work in appellant’s factory until December 4,1916, when his clothing caught in the gear wheels of the machine at which he was working and his body was so crushed and mangled that his death resulted in about five hours. His wife, the appellee herein, petitioned the Industrial Board for an award. A hearing was held at the courthouse at Muncie before the Hon. Charles B. Hughes, a member of said board, who awarded her the sum of $6.60 per week for 300 weeks. Each party made due application for a rehearing by the full board. On review the full board found, among other. things: “That the said Wesley Coffee left surviving him the plaintiff, his wife, as his sole and only dependent; that the plaintiff and said Wesley Coffee, at the time of his injury and death, were living together as husband and wife and plaintiff was being supported by him and was wholly dependent upon him.” The award was. increased by the full board from $6.60 to $8.25 per week, for the reason that decedent’s average weekly wage was erroneously stated in the original finding.

The error assigned is that the award made by the full board is contrary to law and appellant’s contention is that the evidence does not justify that portion of the finding above set out.

The testimony of nine witnesses was received. From all the eyidence it appears that the following facts are not disputed: Appellee and the deceased were duly intermarried on June 16,. 1914, and she was the lawful wife of the deceased at the time of his death. From the date of their marriage to the time he left Mound City he maintained a home there in which they lived as husband. and wife. He left Mound City sometime in May* 1916. When he left she accompanied him to the train and their parting on that occasion was decidedly affectionate. From Muncie he wrote her a letter each week. These letters express his affection for her and his solicitude for her welfare. He sent’her money each alternate week, sometimes five dollars, sometimes seven dollars, and sometimes ten dollars. She applied a part of this money in payment of an indebtedness which was secured by a mortgage on his house, which mortgage had been executed by both of them, a part in payment of the premiums on a policy of insurance in, the sum of $218 on his life, in which policy she was named as the sole beneficiary, and the remainder to her support. She had no means of support other than the money he sent her. In one of his letters he: informed her that he was undecided as to whether he wanted to live permanently in Muncie and. for that reason he had not sent for her. On November 25, 1916, eight, days before his death, he wrote her a letter in which he directed her to dispose of the household goods and to apply the proceeds on the mortgage, told her to come to him, told her to let him know what day she could come, and that he would wire her transportation. A week before.his death he arranged with his landlady for an additional room and said that “he was going to bring her (his wife) there at Christmas. He said she was coming there to live.” There was some evidence tending slightly to show that before he left Mound City there had been an estrangement between him and his wife and that he left there with the intention to abandon her.

1. 2. 3. It was the duty of the board to determine from the évidence, as a matter of fact, whether the wife was living with the husband at the. time of his death. §38 Workmen’s Compensation Act, Acts 1915 p. 392. This court will not disturb the finding on the ground that the evidence is conflicting. A finding of the board will be reversed only where there is no evidence on which the finding can stand. There is no evidence that appellee had disposed of the household goods, and therefore the presumption prevails that at the time of his death their home at Mound City was still intact, and the board was justified in finding that they were living together within the meaning of the statute. Having found as a matter of fact that she was living with her husband at the time of his death, it follows as a matter of law that she was totally dependent on him for support.

Appellant complains of the action of the board in overruling its motion to postpone the hearing before the full board. But no rule of the board bearing on this point is set out, and the matter is not presented by appellant’s brief in a manner that would justify us in deciding it.

The award of the Industrial Board is affirmed.

Note. — Reported in 117 N. E. 524. Workmen’s compensation: who are “dependents” within meaning oí act, L. R. A. 1916A 121, 248, 1917D 157; Ann. Cas.' 1913E 480, 1918B 749; review of facts on appeal under act, Ann. Cas. 1916B 476, 1918B 647; what constitutes living together oí husband and wife within meaning of act, Ann. Cas. 1915B 880.