This appeal challenges an award by the full Industrial Board denying compensation to the appellant. That part of the award necessary for an understanding of the issues raised here reads as follows:
"That on the 8th day of June, 1948, plaintiffs' decedent Esiquio Guevara was in the employ of the defendant at an average weekly wage in excess of $36.50; that on said above mentioned date, the plaintiffs' decedent sustained an accidental injury arising out of and in the course of his employment with the defendant, from which said accidental injury he died the same day; that the said defendant had knowledge of said injury and death.
"It is further found that at the time of the death of said Esiquio Guevara, he was living with Juana Guevara as his common law wife and with Guadalupe or Lupe Guevara, his daughter by a former marriage; both of said plaintiffs were wholly dependent on the said Esiquio Guevara at the time of his death for maintenance and support; that the said Juana Guevara, common law wife of Esiquio Guevara, at the time of his death, had not maintained such common law relationship in Indiana for five years as provided by the Indiana Workmen's Compensation Law." *Page 51
Compensation was awarded to the decedent's child, but denied to his wife.
This appeal involves § 40-1403a, Burns' 1940 Replacement (1947 Supp.); Acts 1947, ch. 162, § 8, p. 523, which provides:
"The following persons are conclusively presumed to be wholly dependent for support upon a deceased employee and shall constitute the class known as presumptive dependents in the preceding section:
"(a) A wife upon a husband with whom she is living at the time of his death, or upon whom the laws of the state impose the obligation of her support at such time. The term `wife' as used in this subsection shall exclude a common-law wife unless such common-law relationship shall have existed openly and notoriously for a period of not less than five (5) years immediately preceding the death."
Appellee Inland Steel Company, by its special answer to appellant's application for compensation, alleged that if appellant was the common-law wife of decedent, such common-law relationship did not exist openly and notoriously for a period of five years immediately preceding decedent's death. Evidence was presented on this issue.
The board found that appellant was the common-law wife of decedent but found that they had not maintained such common-law relationship in Indiana for five years. The board 1, 2. failed to make a finding as to whether or not such relationship existed for any time elsewhere than in Indiana, and if so, whether for the statutory period. The Workmen's Compensation Act does not require that such relationship shall have been maintained only in Indiana for the five year period. It is the duty of the Industrial Board to make a finding of fact on every issue presented *Page 52 to it. Cole v. Sheehan Construction Company (1944),222 Ind. 274, 53 N.E.2d 172; Hayes Freight Lines v. Martin (1948),118 Ind. App. 139, 77 N.E.2d 900.
The appellee Inland Steel Company in its application for a review by the full board, and by petition to the full board, asked the board to take judicial notice of certain Illinois statutes which declare that common-law marriages thereafter entered into are null and void.
From the evidence it appears that appellant and decedent first began living together in Illinois, and then moved to Indiana, where they continued to live until decedent's death. They had lived in Indiana over three, but less than five years when he was killed. The evidence was conflicting as to whether their relationship existed for more or less than five years from its inception in Illinois.
The principal question in this case is the interpretation of that part of the above-named statute which provides: "The term `wife' as used in this subsection shall exclude a common-law wife unless such common-law relationship shall have existed openly and notoriously for a period of not less than five (5) years immediately preceding the death."
Underlying the Workmen's Compensation Act is the principle that the economic loss arising when an employee sustains accidental injury arising out of and in the course of his employment 3. and from which he dies, ought to be borne by the industry involved and the consumers of its products rather than by the employee's dependents or society at large. In re Duncan (1920), 73 Ind. App. 270, 127 N.E. 289.
In construing the legislative intention a measure of liberality should be indulged in to the end that in *Page 53 doubtful cases dependents may not be deprived of the 4. benefits of the humane provisions of the Act. Meek v. Julian (1941), 219 Ind. 83, 36 N.E.2d 854; PublicService Co. of Ind. v. Wiseman (1936), 102 Ind. App. 640,4 N.E.2d 568.
And it has even been said that the Act should be liberally construed to promote the purpose of its enactment, "even to the inclusion of cases within the reason although outside the 5. letter of the statute," although we do not base our opinion on this. In re Duncan, supra; Homan v. Belleville Lumberand Supply Co. (1937), 104 Ind. App. 96, 108, 8 N.E.2d 127;Dietrich v. Smith (1931), 93 Ind. App. 219, 176 N.E. 636. We recognize, of course, that the rule of liberal construction does not permit the law to be distorted so that compensation will be granted in violation of specific statutory provisions. J.W.Jackson Realty Co. v. Herzberger (1942), 111 Ind. App. 432,40 N.E.2d 379.
"We believe that it should be the concern of the court to interpret the act in such manner as to help the legislature accomplish the end that it intended and that the act should 6. be used as a starting point from which judicial reasoning should begin with a view to the correction of the evils and an accomplishment of the ends sought." Homan v. BellevilleLumber and Supply Co., supra.
In ascertaining the intent of the legislature in enacting the 1947 amendment, it may be well to examine the recent legislative and judicial history of certain phases of the Workmen's Compensation Act.
In Russell v. Johnson (1943), 220 Ind. 649, 46 N.E.2d 219, which was approvingly alluded to in Cole v. SheehanConstruction Company, supra, and followed in Thomas v.Central Engineering Const. Co. (1946), 116 Ind. App. 385,63 N.E.2d 295, it was held that a *Page 54 woman, dependent in fact upon a man with whom she was living in adultery, was not necessarily precluded from recovering compensation benefits as his actual dependent. The Supreme Court, in effect, suggested that the General Assembly remedy this situation.
In 1945, the legislature amended § 37 of the Workmen's Compensation Act by § 6 of ch. 188, Acts of 1945, so that the evil results possible under the law as it had theretofore existed were at least partially avoided. In re Marshall (1947),117 Ind. App. 203, 70 N.E.2d 772, contains an excellent discussion of this. It was thereafter held that a woman who had a living husband, but who lived with and was wholly supported by an employee who died under circumstances obligating his employer to pay compensation, was not entitled to compensation for the employee's death as a total dependent in fact. Willan v.Spring Hill Coal Corporation (1948), 118 Ind. App. 422,78 N.E.2d 880.
In our opinion, the above-quoted amendment in 1947, was designed to further reduce the undesirable results which might have been possible under the law.
Prior to the 1947 amendment the Indiana Workmen's Compensation Act made no distinction between wives, based upon the type of marriage. It appears to us that the purpose of this 7. amendment was not to discriminate between legal wives because one was married in one way and another in another way. Rather the legislature desired that it be made certain that the common-law relationship was a genuine one, and not a transitory meretricious connection, where the short time of its existence might raise reasonable doubts as to whether the parties intended a bona fide marriage.
In order to accomplish its object the legislature apparently felt that the social interest in denying compensation where meretricious relationships were involved *Page 55 was so great that to accomplish this end they adopted the rule they did even though it might create the additional evil of denying compensation to lawful widows in some cases.
The requirement that the common-law relationship shall have existed openly and notoriously for not less than five years is not the test of a common-law marriage. For instance, in 8. Schilling v. Parsons, Administrator (1941), 110 Ind. App. 52, 36 N.E.2d 958, it is said:
"Proof of this status varies, depending on the form of the marriage agreement. If the contract is in writing, signed by the parties, or if oral and witnessed, followed by cohabitation of the parties, the marital status is sufficiently established."
The statute should be construed so as to accomplish the end desired by the legislature, and so to minimize insofar as 9. possible, any additional evils created thereby.
The statute only requires that appellant be decedent's common-law wife and that such common-law relationship shall have existed openly and notoriously for a period of not less than five years immediately preceding the death.
The appellant and decedent were residents of Indiana at the time of his death, and under the board's finding they were then husband and wife. We hold the term "common-law 10. relationship" as used in the statute means a relationship that fulfills the requirements of the Indiana law as to common-law marriages, without reference to the place of its prior existence or the validity of that relationship under the laws of any state other than Indiana.
In our opinion, it is sufficient under this statute if appellant was the common-law wife of decedent in *Page 56 Indiana at the time of his death, and if the common-law relationship, both in Illinois and Indiana, existed openly and notoriously for a period of not less than five years immediately preceding decedent's death and during all of this time fulfilled the requirements of the laws of Indiana relating to common-law marriages, including the requirement of capacity, under the Indiana law, to contract such a marriage.
Award reversed and proceeding remanded to the Industrial Board with instructions to make a finding of fact on the issue presented as to whether the common-law relationship of 11. appellant and decedent existed openly and notoriously for a period of not less than five years immediately preceding the death, and to make an award accordingly. Cole v. SheehanConstruction Company, supra; Hayes Freight Lines v. Martin,supra.
Royse, J., dissents with opinion.
Draper, C.J., concurs with opinion.