252 N.W. 78 | Minn. | 1934
Lead Opinion
Sam Olson, while in the employ of respondent Dahlin Jones Electric Company on May 13, 1932, was killed in an accident arising out of and in the course of his employment. He left surviving relator, his wife. He left no child. The referee awarded compensation. On appeal to the industrial commission the findings and award were vacated and this finding made:
"That said employe left surviving him his wife, Hazel Olson; that at the time of the injury and death of said employe his said wife was, and for more than three years immediately prior thereto had been, voluntarily living apart from her husband, the said decedent."
Consequently she was denied compensation; and $200 was awarded the special compensation fund.
The assignments of error go to that part of the quoted finding which declares that relator was "voluntarily living apart" from her husband at the time the accident befell him. Error is also assigned on the refusal to grant a rehearing.
The record presents a peculiar domestic situation. Relator and decedent were married in 1906. They lived together for 22 years, the last few years thereof in their own home in St. Paul. They had no children, and the wife earned some money as a waitress, working part time in restaurants. During 1927 and 1928 the husband had difficulty in finding employment. In June, 1928, the wife had the opportunity to go to Yellowstone Park as a waitress in a park hotel. She accepted the offer, apparently without objection from the husband. She returned to St. Paul in September. Thereafter and *428 during 1929 there was scarcely any communication between the two. From 1929 on until the husband's death they met frequently on friendly terms. Relator at times did some washing for her husband and cooked some meals for him when she visited where he roomed. Shortly before his death he invited her to dinner at a hotel, went to a movie with her, and then took her home in a taxi. She claims that the reason they parted in 1928 was solely because of his financial straits. The home was mortgaged, he had had no work for some time, and was unable to meet the payments on the mortgage on the home or to pay the delinquent taxes thereon. So they had to break up housekeeping and sell the home. Relator signed the deed. Something less than $1,200 remained after payment of the encumbrances. Of this relator received $400 and the husband the balance. There is no evidence that either asked the other for money thereafter; nor does she tell what she did with the $400 she had received when the home was sold, nor what she did with her earnings. After 1929 the two called on their friends together and acted the part of man and wife on such calls. There is in the alleged newly discovered evidence a letter from relator to her husband, written shortly before the accident, wherein she suggested that he give her some money to repair her car. Affidavits are also produced from a number of persons to show friendly relations between the two and a desire to live together in the near future.
1 Mason Minn. St. 1927, § 4275, declares that a wife is conclusively presumed to be wholly dependent "unless it be shown that she was voluntarily living apart from her husband at the time of his injury or death." So to escape paying compensation in this case the employer was required to prove that relator voluntarily lived apart from her husband. Whether a wife is in fact living apart is easy of proof. The evidence is here conclusive that for almost four years prior to the death of the husband relator lived apart from him. But that fact does not exclude her from compensation. It must be shown that the living apart was a voluntary choice on her part. This is more difficult because it depends chiefly on the state of mind of the wife — her intention. There may be extraneous *429
circumstances beyond her control that force her to live apart from him. State ex rel. George J. Grant Const. Co. v. District Court,
Error is assigned on the refusal of the commission to grant a rehearing on the ground of newly discovered evidence. As we see it, this evidence is merely cumulative as to evidentiary facts that are not in dispute, that is, that the parties looked forward to a time when they might again live together. But that aside, the granting of a rehearing rests with the commission, except where it appears that judicial discretion has been abused. Ogrosky v. Commonwealth Elec. Co.
The decision of the industrial commission is affirmed.
Dissenting Opinion
In view of the facts that because of financial troubles and decedent's unemployment it was necessary for the parties to sell their interest in the house they had occupied, that thereafter the husband, as far as appears, provided no home for them in which to live, that the wife had to seek employment, and from time to time was employed in domestic service, or other service which required her living at the place of service, that at the time of the husband's death she was employed at the Somerset club some distance out from the city, it seems that the commission may have failed to give sufficient consideration to material parts of the evidence before the referee. The case should be sent back to the commission for rehearing. The fact that the wife did not go into more detail in reference to their financial troubles is not of great weight.
Dissenting Opinion
We concur in the views expressed by Mr. Justice Olsen. *431
