Opinion
No. 23462
Decided December 14, 1932.
Workmen's compensation — Death benefits and total dependency — Section 1465-82, General Code — Workman awarded compensation for injuries during lifetime — Widow entitled to death award, although husband disabled during entire marriage — Mandamus — Husband's obligation to support wife not discharged by continuing physical disability.
1. Where a workman has been injured in the course of his employment, has been allowed compensation for such injury by the Industrial Commission, and has died as a result of such injury, and where the widow of such workman, who has lived with such workman during the entire period of her marriage to him, has taken an appeal from the order of the Industrial Commission denying her right to receive compensation from the state insurance fund, upon the ground that the proof failed to show any dependency, and where the court of common pleas, upon trial, has found upon the issues joined for the plaintiff, from which judgment the Industrial Commission has prosecuted no error proceedings, under the judgment of the court and the provisions of Section 1465-82, General Code, mandamus will lie to compel the Industrial Commission to pay an award to such widow in such amount as the statute provides in death claims for those who are totally dependent, making such deductions as are required under the statute.
2. The legal obligation of a husband to support his wife out of whatever property he has or may receive is not discharged by his continuing physical disability.
IN MANDAMUS.
This case arises as an action in mandamus filed originally in this court. The respondent, the Industrial Commission of Ohio, demurred to the petition. The petition alleges that the relator, Charlotte Person, is the widow of Edmond Person; that Edmond Person died on or about December 2, 1927, as the result of injuries sustained by him on or about November 3, 1925, in the course of his employment in the service of a company which had complied with the provisions of the Workmen's Compensation Act.
The salient facts set forth in the petition are that up to the date of his death, and during all the time of the marriage, Edmond Person was unable to and did not perform any work whatever. On or about December 1, 1925, Edmond Person filed his application for compensation for such injury, and the Industrial Commission awarded compensation for total disability resulting from such injury to July 6, 1926. On or about November 22, 1927, the Industrial Commission awarded to Edmond Person compensation for total disability from January 4, 1927, to December 31, 1927, but the check for such award was not received by Edmond Person during his lifetime, and the amount of the award was later cancelled and returned to the state insurance fund.
Thereafter relator, Charlotte Person, filed an application for compensation with the Industrial Commission which was denied upon the ground that the proof failed to show any dependency. Upon appeal, a jury being waived, the court of common pleas found for the claimant, and a motion for new trial by the Industrial Commission was overruled. Error proceedings were not prosecuted by the Industrial Commission.
The relator was married to Edmond Person on or about January 8, 1927. During the entire time of her marriage to her husband, the relator was living with him, and she alleges in her petition that she was totally dependent upon her husband.
The relator prays for a peremptory writ of mandamus, compelling the Industrial Commission to find her wholly dependent upon her deceased husband and to award her compensation from the state insurance fund at two-thirds of her deceased husband's average weekly wages for the remainder of the period between the date of his death and eight years after the date of his injury, less any compensation paid to her deceased husband on account of total or partial disability on account of such injury suffered by him, and less the amount awarded to her for partial dependency, or that the respondent appear and show cause why it should not do so.
After the trial in the court of common pleas heretofore referred to, the Industrial Commission found that the relator was partially dependent upon her deceased husband, and awarded her for such partial dependency compensation for a period of 100 weeks, based upon an average weekly wage of $23.61.
Further facts are stated in the opinion.
Mr. Harry J. Koehler, Jr., and Mr. Stanley S. Stewart, for relator.
Mr. Gilbert Bettman, attorney general, and Mr. R.R. Zurmehly, for respondent.
It is in brief the argument of the Industrial Commission that, since the relator married her husband after his disability, and since he performed no work after that time, and did not in fact support his wife after that time, there is no basis in law for making an award based upon total dependency.
Section 1465-82, General Code, provides that the following persons shall be presumed to be wholly dependent for support upon a deceased employe:
"(A) A wife upon a husband with whom she lives at the time of his death. * * *
"In all other cases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employe, but no person shall be considered as dependent unless a member of the family of the deceased employe, or bears to him the relation of husband, or widow, lineal descendant, ancestor or brother or sister."
The relator was living with her husband at the time of his death, and it is conceded that she lived with him during the entire time of his disability, after her marriage. She therefore falls specifically within the provisions of Section 1465-82, above quoted.
The presumption that the relator was wholly dependent for her support upon the deceased employe could have been rebutted. However, the court of common pleas found as a fact that the relator was entitled to participate in the fund, and the Industrial Commission prosecuted no error from such judgment.
It is true that this case presents an extreme illustration of the application of the law as to dependency in these cases. The wife was not supported by her husband, who was totally disabled during the entire time of the marriage. However, under the Workmen's Compensation Act, dependency is based upon the right to support, rather than upon the actual fact of support. This was the specific holding in the case of Industrial Commission v. Drake, 103 Ohio St. 628, 134 N.E. 465, which held in a part of the third paragraph of the syllabus that the obligation of a father to support his infant children is not excused on the ground that the custody of the children has been awarded to a divorced wife in a suit where no order was made for allowance and support of children.
A case even nearer in facts to the instant case is that of Austin Co. v. Brown, 121 Ohio St. 271, 167 N.E. 874, in which it was held, that to entitle the widow to death benefits, it is only necessary to prove that she was lawfully married to the deceased employe and was living with him at the time of his death; that he was injured in the course of his employment; that his compensation or disability was continuous to the time of his death; and that the death was the result of the original injury.
That case is on all fours with the instant case excepting for the fact that Brown received compensation for disability resulting from his injury and did contribute to the support of his wife out of this compensation. In the instant case, owing to the fact that the award of the Industrial Commission was not received until after the death of the husband, and was cancelled by the Industrial Commission, Mrs. Person received no part of the payment intended for Edmond Person.
The relator may have been, and doubtless was, counting upon this award for the support to which she was legally entitled from her husband.
Section 7997, General Code, provides:
"The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able."
This legislative recognition of the obligation of the husband to support his wife is further emphasized by the provisions of Section 8003, General Code, which reads as follows:
"If the husband neglects to make adequate provision for the support of his wife, any other person, in good faith, may supply her with necessaries for her support, and recover the reasonable value thereof from the husband."
If Mrs. Person, counting upon the making of the award prior to her husband's death, had secured from some other person necessaries for her support, that other person, if he had in good faith supplied her with such necessaries, could have recovered the reasonable value thereof from the husband. If the award had been received, it would have become the property of Edmond Person, and, regardless of his continuing physical disability, it would have been his obligation out of such property to support his wife.
Can it be that through delay in the payment of an award under a statute enacted for the express purpose of caring for workmen, their wives and children, the right of the wife to support may be defeated? We think not, and the demurrer to the petition will be overruled. Respondent not desiring to plead further, the writ will be allowed.
Writ allowed
JONES, MATTHIAS, DAY and STEPHENSON, JJ., concur.
KINKADE, J., not participating.