Opinion
No. 38286.
March 17, 1952.
1. Workmen's compensation — dependency of widow.
Under the workmen's compensation statute the widow of a deceased workman is presumed to be dependent, but this is a rebuttable presumption. Sec. 18, Chap. 354 Laws 1948.
2. Workmen's compensation — dependent widow — when not such.
Although legally the widow of the deceased workman, a woman who has voluntarily lived apart from her husband for six or seven years in unlawful cohabitation with another man by whom she was supported and because of her preference for the latter, is not an acceptable beneficiary under the workmen's compensation statute. Sec. 2(14) Chap. 354 Laws 1948.
3. Workmen's compensation — widow's rights determined by the statute.
The widow's right to compensation is to be determined by the statute whose benefit she invokes, not in the legal obligation of the husband for support or separate maintenance.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Hinds County; M.M. McGOWAN, Judge.
V. Ruth Campbell, and Barnett, Jones Montgomery, for appellant.
I. Widow, as defined by the Mississippi Workmen's Compensation law. Sec. 2, Subsec. 14, Compensation Law; Sec. 2735 Code 1942; Pierce v. Pierce, 38 So. 46; Garland v. Garland, 50 Miss. 694; Rylee v. Rylee, 142 Miss. 832, 108 So. 861.
II. The evidence is clear that Odessa Jones Thomas was the legal wife of Tommie Thomas at the time of his death. Floyd v. Calvert, 53 Miss. 37.
III. The law requires a husband to support his wife. Gresham v. Gresham, 21 So.2d 414; Kearney, et al. v. Kearney, 174 So. 59.
IV. The duty of the husband to support the wife continued even though they were separated at the time of his death. 41 C.J.S. 404, 409; Amis on Divorce; Henderson v. Henderson, 208 Miss. 98, 43 So.2d 871; U.S.F. G. Co. v. Smith, 52 So.2d 251; 41 C.J.S. 518.
V. Tommie Thomas, by being cruel to his wife, and driving her out of their home, was himself guilty of constructive desertion. Griffin v. Griffin, 42 So. 720; 17 Am. Jur. 201, Sec. 101.
VI. Questions of morality are not involved. Gaudreau v. Eclipse, etc., Air Corp., 61 A.2d 227; Blanks v. Southern Railway Co., 35 So. 570; Delaware County Trust Co. v. General Chemical Co., 64 A.2d 608; Schulz v. Great A. P. Co., 331 Mo. 616, 56 S.W.2d 126; Industrial Commission of Ohio v. Dell, 104 Ohio 389, 34 A.L.R. 422; Woods v. American Coal Ice Co., 25 S.W.2d 144; Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68; Gulf States Steel Co. v. Witherspoon, 214 Ala. 130, 106 So. 900; Longshoremen's Act, T.J. Moss Tie Co. v. Taunt, 44 F.2d 928; Merrill v. S. Razor Corp., 279 N.Y.S. 850.
VII. The fact that Odessa Jones Thomas did not take any steps to enforce her right of support from Tommie Thomas during his lifetime does not affect her compensation claim as his widow. Alexander v. Cunningham Roof Co., 15 A.2d 612.
VIII. The Commission cannot read provisions into the act which it does not contain. Moore Dry Dock Co. v. Pillsburg, etc., 169 F.2d 988; Secs. 2, 9 Longshoremen's Comp. Act; Belzoni Hardwood Lbr. Co. v. Langford, 89 So. 919.
IX. Odessa Jones Thomas was never married before her marriage to Tommie Thomas. Medora Rundle v. G.G. Pegram, 49 Miss. 751; Floyd v. Calvert, 53 Miss. 37.
X. The compensation law of Mississippi as it existed in 1949 must control this case. Sec. 14, Constitution 1890; Stone v. McKay Plumbing Co., 30 So.2d 91; Barton v. State, 94 Miss. 375, 44 So. 521; New Orleans v. Clark, 95 U.S. 644; U.S. Constitution, 14th Amendment; People ex rel. Foote v. Clark, 283 Ill. 211, 119 N.E. 329; Osborn v. Nicholson, 13 Wall (U.S.) 654, 20 L.Ed. 689; Gebbes v. Zimmerman, 290 U.S. 326, 54 S.Ct. 140.
XI. Rights accruing under workmen's compensation laws are vested rights. A.P. Smith Mfg. Co. v. Court of Common Pleas of Essex County, 107 N.J. 38, 150 A. 771.
XII. When an accident occurs to an employee, covered under the workmen's compensation law, rights become vested and fixed at the time of the accident and cannot later be destroyed or diminished or enlarged by subsequent legislation. Shink v. Augustus Candy Co., 113 A. 32; Smith Mfg. Co. v. Court of Common Pleas, Essex County, 107 N.J. 38, 150 A. 771; Cusick v. Feldpausch, 259 Mich. 349, 243 N.W. 226; Rebel v. Standard Sanitary Mfg. Co., 16 A.2d 534; Massa v. Nastri, 125 Conn. 144, 3 A.2d 839.
XIII. Odessa Jones Thomas was the legal wife of the deceased at the time of his injury and death, and is entitled to the compensation benefits. Johnson et al. v. Midland Constructors, Inc., et al., 11 So.2d 895; Patin, et al. v. T.L. James Co., Inc., et al., 39 So.2d 177; 68 C.J. 263; Cole v. Mayne, 122 Fed. 836; Rittenhouse v. Hicks, 10 Ohio Dec. 759; Fulton Bag Cotton Mills v. Fernandez, 159 So. 339; McManus v. State Compensation Comr., 113 W. Va. 566, 169 S.E. 172; Merrill v. Shenandoah Rayon Corp., 279 N.Y.S. 850; Southern R.R. Co. v. Cartwright, 77 F.2d 546; Woodward Iron Co. v. Jones, 217 Ala. 361; Cotter v. Valentine Coal Co., 14 S.W.2d 660; Atlantic Bitulithic Co. v. Maxwell, 40 Ga. App. 483, 150 S.E. 110; Franklin Flourspar Co. v. Bell, 57 S.W.2d 481; Woods v. Amn. Coal Ice Co., 25 S.W.2d 144. Lotterhos Dunn, for appellee.
Cited and discussed the following authorities:
Sec. 207, Amis on Divorce and Separation in Mississippi; Sides v. Pittman, 167 Miss. 751, 157 So. 211; Holmes v. Holmes, 1 Miss. 474; Hulett v. Hulett, 152 Miss. 476, 119 So. 581; Winfield v. Winfield, 203 Miss. 391, 35 So.2d 443; Redmond v. Broadus, 153 Miss. 889, 122 So. 194; Walker v. Matthews, 191 Miss. 489, 3 So.2d 820; Joy v. Miles, 190 Miss. 255, 199 So. 771; Moore Dry Dock Co. v. Pillsbury, etc., 169 F.2d 988; Ryan Stevedoring Co. v. Henderson (C.C.A. 5) 138 F.2d 348; American Mutual Liability Ins. Co. v. Henderson, (C.C.A. 5), 141 F.2d 813; Harkins v. Cole, 200 Miss. 698, 28 So.2d 839; Cases from Digest; Wilson v. Birmingham Electric Co., 122 So. 411; Stanley v. Stanley, 201 Miss. 545, 29 So.2d 641; Comans v. Tapley, 101 Miss. 203, 221, 57 So. 573, Ann. Cas. 1914B, 307; Weeks v. Behrend, 135 F.2d 258; Pierce v. Pierce, 38 So. 46; Rule 7, Miss. Workmen's Compensation Act.
And concluded:
A compensation widow must have been a legal wife but every legal wife, in the technical sense, is not entitled to compensation. To qualify, she must meet the requirements of the law. If not living with him at the time of death and if not actually receiving support at such time, she must have been separated originally for justifiable cause and must, at the time of death, have been living apart for justifiable cause, which means that she must at least have been entitled to demand and receive support because of the marriage relationship.
In the case at bar, appellant failed to qualify on any ground. In the first place the proof fails to show that the original separation in 1934 was the result of a matrimonial offense, as known to our law, and in any event after the lapse of sixteen years from the date of such separation, the doctrine of laches applies to prevent any claim which refers to the occasion or the alleged cause of separation.
In the second place, and if mistaken in the foregoing, Odessa is nevertheless barred by her conduct. This conduct involves: (1) A separation of sixteen years duration without claim for, receipt of or expectation of support; (2) the admission that after the separation, Odessa ceased to consider herself as Tommie's wife; (3) a bigamous common law marriage with Townley Williams, approximately seven years prior to the occasion of Tommie's death; (4) the action of Odessa in taking Townley's name and in continuing to live with Townley Williams for many years in the practical and avowed relation of husband and wife, in which relation she continues to this time; (5) the birth of five children by Townley Williams; and (6) Odessa's admitted contentment and satisfaction with the whole arrangement. All of this was done after Odessa left Tommie and ceased to consider herself as his wife and with no effort or apparent desire on the part of Odessa to become reconciled, with full knowledge of Tommie's general whereabouts and the fact that her former marriage had not been dissolved.
All of the cases in point are in support of the findings and judgment in the instant case. One court, the Fifth Circuit Court of Appeals, reasons that the conduct of the wife in such cases supersedes the original cause of separation. Other cases hereinabove cited point out that the wife, by her conduct, acquiesces in the husband's prior repudiation of any obligation for support and substitutes the bed and board of another. Our own Court, in analogous cases, has said that she "thereby deserted and abandoned him as his wife" and that she is "estopped" to claim the fruits of that marriage. Harkins v. Cole, supra, and Walker v. Matthews, supra.
But whatever the form of reasoning pursued, the result is always the same. In the final analysis, we know that the compensation act is designed and written for the purpose of relieving economic loss resulting from injury or death of an employee. Odessa suffered no economic loss whatever, actual or legal, by Tommie's death and it is not within the letter or spirit of the law that she should be thereby enriched.
Appellant is the widow of one Tommie Thomas whose death justified compensation under our Workmen's Compensation Law, Laws 1948, c. 354, provided there is a qualified beneficiary. She was the legal widow of the deceased but at the time of the death of Tommie Thomas, he was living with another woman and appellant was, and had been for six or seven years, living in adultery with one Williams by whom she had several children. She had not lived with Thomas for fifteen years since their separation about 1934. From an adverse judgment by the circuit court affirming the finding of the Commission, this appeal is taken.
The facts may be summarized by the following: Appellant never procured a divorce from Thomas, and was aware of her status as an unlawful consort of Williams. She did not look to Thomas for support and neither needed nor expected such. On the other hand, she held herself out as the wife of Williams and received support from him.
There is brought into view the applicable statute, Chapter 354, Sec. 2(14) of the Laws of 1948, which contains this provision: "The term `widow' includes only the decedent's wife living with or dependent for support upon him at the time of his death; or living apart for justifiable cause or by reason of his desertion at such time,". (Hn 1) It is true that under subsection (18) thereof, a widow is presumed to be dependent, but this is a rebuttable presumption, and the facts are sufficient to uphold the unanimous finding of the Commission that such dependency did not exist. (Hn 2) Attempt is made to show that appellant left Thomas in 1934 "for justifiable cause." This is not the proper test. Under the statute she must be living apart for justifiable cause or by reason of his desertion. The record shows that she was living apart from Thomas because of her preference for Williams. She had voluntarily established a new household albeit in defiance of the law and the proprieties. She superimposed his name above her former title and the white flags of their union fluttered from the nursery clothes lines. She was not staying apart from her lawful husband for any cause that we can justify.
She had not only abandoned the curtilage of Thomas but had quitted the protection of the law. Between herself and the rights of a beneficiary, she had erected the barrier of estoppel, reinforced by facts that deny her access to the statute. Her plea is inaudible above the accusing protests of outraged law. Her outstretched hands are not clean. Our conclusions are supported by sound authority. Ryan Stevedoring Company v. Henderson, 5 Cir., 138 F.2d 348; American Mutual Liability Insurance Company v. Henderson, 5 Cir., 141 F.2d 813. See also Harkins v. Cole, 200 Miss. 698, 28 So.2d 839.
(Hn 3) It is not helpful to seek support in the legal obligation of a husband for support or separate maintenance. Her status is to be determined in the Act whose benefits she seeks.
Affirmed.
Roberds, Lee, Arrington and Ethridge, JJ., concur.