Continental Casualty Co. v. Pillsbury

OLNEY, J.

One Cox was killed while in the employ of the Sacramento Northern Railroad. No question is made but that the accident resulting in his death occurred under such circumstances that his dependents, if he had any, are entitled

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to compensation under the Workmen’s Compensation Act. He left a wife and she petitioned the commission for such compensation, and it was awarded her as wholly dependent upon him. The insurance carrier for the employer thereupon petitioned for and secured an alternative writ from this court to review the award. The sole question is as to whether the decedent’s wife was wholly dependent upon him within the meaning of the Workmen’s Compensation Act.

The material provisions of the act are the following portions of section 14:

“Sec. 14. (a) The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee: (1) A wife upon a husband with whom she was living at the time of his death, or for whose support such husband was legally liable at the time of his death. . . . (b) In all other cases, questions of entire or partial dependency and questions as to who constitute dependents and the extent of their dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury of the employee. ’ ’

The wife was not living with the decedent at the time of his death. In order to support the award of the commission it must therefore appear either that the decedent was legally liable for her support or that she was in fact wholly dependent upon him. The commission found in favor of the wife on both these issues. As we are of the opinion that the award must be sustained upon the first ground—that is, that her husband at the time of his death was legally liable for her support—there is no necessity for considering the second.

The facts upon the first issue are that the decedent deserted his wife in 1911, and never lived with her afterward. No proceedings for a divorce were ever brought, but in 1912 his wife filed in Iowa a suit for separate maintenance .and secured a decree awarding her such maintenance in the sum of $50 a month. This decree remained in effect until the decedent’s death. ■ Pursuant to the decree the decedent sent his wife money from time to time, the amounts averaging about $20 or $25 a month. The position of the insurance carrier is that by reason of the existence of this maintenance decree, the husband was not legally liable for his wife’s support.