158 N.E. 909 | Ind. Ct. App. | 1927
This is a claim filed before the Industrial Board of Indiana, for the death of one Frank Jachymek, who came to his death while in the employ of appellee April 23, 1919, as a result of an accident arising out of and in the course of his employment. The action was brought for the benefit of appellant, who was the widow, and the minor children of said decedent, appellants Hedwig Jachymek and Frank Jachymek.
On petition of appellants, the application for compensation was amended so as to permit appellants, widow and children to prosecute their claim in their own names. On December 22, 1926, the cause was submitted to the full board, and on January 4, 1927, a majority thereof found that on April 23, 1919, while in the employment of appellee at an average weekly wage in excess of $24, Frank Jachymek received a personal injury by an accident arising out of and in the course of his employment with appellee; that said injury resulted *580 in his death on said date; that appellee had actual knowledge of the accident and injury and death on the date that it occurred; that said Jachymek left surviving him no one wholly or partially dependent upon him for support.
On this finding, an award was rendered that appellants take nothing, from which this appeal.
The substantial question presented is as to the dependency of appellants as the wife and children of the decedent. The only and undisputed evidence in this regard was by the deposition of appellant Pavlina Jachymek, by which it appears that her residence was Rakvice U. Hustopece, Moravia; that she was fifty-one years old, and was married to Frank Jachymek, at Rakvice U. Hustopece, Moravia, on September 12, 1911. There were two children born of the marriage, Hedwig Jachymek, born October 16, 1912, and Frank Jachymek, born December 23, 1913. They lived with the mother in Rakvice U. Hustopece, Moravia, Czechoslovakia, and were being supported by her. Frank Jachymek left Czechoslovakia for the United States of America on March 12, 1914. At the time of his departure, he and appellant Pavlina were living together as husband and wife, and he supported her and the children up to the time of his departure from Czechoslovakia. Thereafter she received from 300 to 400 crowns every six weeks from her husband, which money was used to support the children and herself. She received a letter from her husband every two or three weeks. All of these letters have either been lost or destroyed. She was never divorced from the said Frank Jachymek, and he never left her and she never left him with the intention of becoming permanently separated.
This evidence is wholly undisputed and its truth is unchallenged by appellant in its brief. It is not, then, *581
a question of the weight of the evidence, and its effect 1-3. becomes a matter of law for the court. First Nat. Bank
v. Farmers, etc., Bank (1908),
Reversed.
Dausman, J., absent.