*73Mrs Charity Davis,Appellant. vs Lyon Lumber Co.
No.8755
Charles F.Claiborne,Judge.This is a suit under the Workman's Compensation Law.
The plaintiff alleged that she was married to George Davis on January 20th 1898;that her said husband while engaged in the discharge of his duties as a laborer in the employ of the Lyon Lumber Company at Garyville was killed on July 18th 1921 ^hat at the time of his death his average weekly earning was $9.60; that she was the sole depondent of her said husband, and that by his death she was deprived of his support,and that there is due her under the Employees' Liability Aot for a period of 300 weeks thirty per cent of his average weekly earnings, or $3.00 per week;an$¿she prays for judgment accordingly.
Defendant admitted the employment and the wages^ but denied all the other allegations,especially the condition of dependence.
There was judgment in favor of the defendant rejecting plaintiff's demand^and she has appealed.
The plaintiff’s claim depends upon the interpretation ot the following section of Aot.247 of 1920 p.470 ;
S 2 :f That injury causing death within one year after the accident,weekly compensation shall be paid under this act for a period of Three Hundred weeks to the following persons: ( A ) If widow or widower alone,and no children,then to such widow or «védense widower thirty per centum of wages, p 472 (1) No compensation shall be payable under this section to a widow unless she be living with' her deceased husband at the time of the injury and death,or be then actually dependent upon him for support."
*74p 472 s B or In all oases provided for In this section the relation of dependency must exist at the time of the injury and at the time of the death.”
Two questions therefore arise.
1st Whether the widow was "living with her deceased // husband at the time of the injury and death u r "
2nd or was then» actually dependent upon him for support.
I The evidence establishes that the plaintiff wife had abandoned her husband at least fourteen years before and had lived with other men from whom she begot three children.
This seperatlon lasted until his death and would exolude her from the benefits of the compensation act under its very terms.O.J. Advance Sheets P.59
II In 3 A 713 Armstrong vs Steeber,the Court denied the marital fourth to a wife who had abandoned her husband for several years to live in oonoubinage with another.
In Piokens vs Gillám 43 A 360b the court denied the marital fourth to a husband who had deserted his wife for seventeen years.The Court said they were strangers to eaoh other and it was as if they had not been married.In Richard vs Lazard 108 La 640 the Court denied the benefits of the $1000 homeste&d to a widow who had left her husband» to live in open conbu-binage with another man.The Court said p.644BHer situation was no more affected by his death than that of^the City. Ee did not therefore leave her in necessitous circumstances within the meaning- of the Article of the Code in which she relies and has no-claim.upon his suooesslon.”
" The test of dependency is always whether the contributions-were relied updn .by.the dependent as a means of 1'iVing * 93 Att 246 .
* Where it appear* ¡that the separation Bad not been by the.act of the hu&bandjtmt has been of. the wife's own *75accord,compensation will be denied.Thus where the evidence shews that the wife bad left the husband twelve years before the accident of her own accord and had been supported during that time by her own work and by the help of 'relatives and had never asked for nor received help-form the husband,she will not be g«anted compensation as a dependent." Mo Inroy vs Me Slashen (Eng ) 6 Negligence Compensation Cases Annotated.248 idem- Polled vs Great Northern BED.Co.p.248-idem Lee vs Bessie p.249 -idem p.249-idem Keeling vs Colliery 240-9 N.C.C.A.586 586-5 N.C.C.A.694.
In this case there is evidence that the deceased on few occasions donated small sums of money to his wife.But this is not sufficient support to create dependency.6 N.C.C.A.249 ..
Nor is it sufficient that the wife has,under the law,-the right to depend for support on her husband.6 N.C.C.A. 240 New Monokton Collieries vs Keeling (1911) A.C.648C.J.Advanee, sheet p.57-
In Negory vs Standard Oil Co. 151 La 229 the Court eaid:$ " The statute under whioh the suit is brought ( Act 38 of 1918 ) names two olasses of persons who are entitled to recover compensation for the injury and death of an employee. ®st Those who are conclusively presumed to be dependent; and- 2nd' those wno are actually dependent upon the deceased employee,to any extent .for support at the time of the injury and death.Those of the' latter class are required to make proof of their dependency.The plaintiffs belong to that efees class xx The statute does not attempt to define what shall constitute "actual dependence for.support to any extent",and the Coufct oannot make any definite inflexible rule to govern every case. Each oase muBt be considered in the light of its own facts and attending circumstances" C.J.advanoe sheet 1917 Workmen's Compensation Acts p.55-.
There is evidence that a short time before his death *76.the deceased husband authorized the owner of a Country Store to open an account in his name and, to sell groceries to his wife and charge them to his account;the items charged are small and not sufficient to establish a case of support; Davis paid on the acount once a while and his wife always came to pay.
It was financially impossible for Davis to have kej)t up his own home and another besides with $9.80 a week .
It is sufficient for us in this case to say that the plaintiff has not established that"at the time of the injury and death of her husband she was then aotually dependent upon him for support."
The evidence shows that at that time she had abandoned the conjugal home for many years before,and had been kept by other men in their homes,and even went by the name of one of them,and had been supported by them,or by her own efforts and that her husband did little or nothing towards her support and that by his death she was not deprived of his support and her situation was not affected for worse,and she lost nothing.
The judgment of the District Court is therefore affirmed.
April 30th 1923 .