La Fountain v. Industrial Accident Commission

THOMPSON, J.

By means of

certiorari

the petitioner seeks to review an order of the Industrial Accident Commission denying her claim for compensation on account of the death of her husband, which was refused on the ground that she was not dependent for support on the deceased at the time of his death, since she had previously deserted him and they were living separate and apart from each other.

The petitioner and Alfred La Fountain were husband and wife at the time of his death, December 28, 1934, which occurred in the course of his employment by a fall into the shaft of a mine where he was working. Both spouses were under the age of majority. Their married life was brief and turbulent. Wild parties and excessive drinking contributed to their lack of harmony. "November 13, 1934, they separated. He sought a reconciliation, which she refused. Her mother tried to adjust their differences, but failed. The claimant was keeping company with another young man. The morning of their separation the spouses were quarreling and the wife was heard to say “she wouldn’t stay with him because Ed Brobeek had made a better proposition to her and was going to take her up to Utah”. November 19th she wrote her husband a letter saying, ‘ I have concluded that we cannot live together any longer; therefore I am addressing you for the purpose of ascertaining whether or not it will be

[132]

convenient for you during the present week to call with your father so that we can proceed with an annulment of our marriage. ’ ’ On December 26th, two days before the death of her husband, she went to Sacramento in company with the young man Brobeck to see a lawyer, who at her request then commenced a suit for annulment of the marriage. The father of the deceased signed the complaint, but the claimant paid the fees for conducting the litigation. It is evident that she voluntarily left her husband on account of her interest in the other young man. The evidence shows that she wilfully left her husband and resisted all efforts toward a reconciliation. The commission found that: “Emeline La Fountain was the wife of Alfred La Fountain at the time of the injury and had deserted him and was not living with her husband at the time of the injury, and he was not liable for her support, and she is not a dependent within the presumption of section 14 [of the Workmen’s Compensation Act]. The employee was not contributing to the support of Emeline La Fountain at the time of the injury and she was not in fact dependent.”