not being supported by the husband,32 or where their living apart is voluntary 33 and without justifiable cause on the part of the wife. Under the express provisions of the Massachusetts Act, a wife living apart from her husband for justifiable cause is entitled

trial accident, there can be no presumption of entire dependency of the wife, and the facts must establish the dependency, if any. Bristol v. Gartland, 1 Cal. I. A. C. Dec. 632.

32 Where a husband and wife had lived apart for several years, and she had worked for her own support, to which he contributed a part, they were not living together, so as to entitle her to compensation under the conclusive presumption that a wife living with her husband is dependent upon him, though they had occasionally spent a few days together. (St. 1911, c. 751, as amended by St. 1914, c. 708, § 3) In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145.

A widow of a deceased employé, who had separated from him prior to his death, and who was living apart from him and earning her living without receiving any aid from him, is not entitled to a death benefit. She cannot claim the benefit of the conclusive presumption of dependency tion 19 (a) 1 of the Workmen's Compensation, Insurance, and because she was not living with him at the time of his death. California Portland Cement Co., 1 Cal. I. A. C. Dec. 436.

under sec Safety Act,

Delgado v.

A wife who is living apart from her husband, following a vocation in another state, which was her means of livelihood prior to her marriage, cannot be said to be wholly dependent upon him for her support, within the meaning of the Workmen's Compensation Law, and on his death entitled to maximum compensation from his employer. Finn v. Detroit, Mt. Clemens & Marine City Ry., Mich. Wk. Comp. Cases (1916) 222.

An employé was killed, leaving a widow whom he married in South Wales in 1877. He was a native of Wales, and left his wife in 1896, and came to America, in 1900 contracting a bigamous marriage with a woman with whom he lived and whom he supported until the day of his death, she having no knowledge of his former marriage and believing herself to be his lawful wife. He had contributed nothing toward the support of his first wife since before the time of his bigamous marriage. The Commission held that his lawful wife was not dependent upon him for support at the time of his death. In re Elizabeth A. Jones, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 187.

33 Where the workman and his wife were voluntarily living apart at the time of his death, each earning a living, the conclusive presumption of total dependency of a wife upon a husband "with whom she lives" at the time of his death does not arise. (St. 1911, c. 751, pt. 2, § 7, cl. "a") In re Nelson, 217 Mass. 467, 105 N. E. 357.

36

to compensation.34 The "justifiable cause" need not be such cause as will entitle her to a divorce; it may be ill-treatment or misconduct of a lesser degree.35 But a wife cannot be said to be living apart from her husband for justifiable cause where there has been no failure of marital duty on his part. Thus, where a husband and wife separate by mutual consent, and such separation is justifiable because he is not earning enough to support his family, but it appears that, though at the time of his death his earnings had so increased that he was amply able to support his family, she still continued to live away from him by mutual agreement, she was not entitled to compensation as a dependent. Her living apart at the time of his death was not for justifiable cause. The wife and child of a deceased workman, who were both living apart from him at the time of his death, are not conclusively presumed to have been wholly dependent on him for support, but that question is to be determined by the evidence of the fact as it existed at the time of the injury.38

37

The provision of the California Act "that the following shall be conclusively presumed to be wholly dependent for support upon

34 In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145. St. 1911, c. 751, pt. 2, § 7, cl. "a," was amended by St. 1914, c. 708, § 7, cl. "a," by a provision that, if at the time of the husband's death the Industrial Board shall find that the wife was living apart for justifiable cause or because he had deserted her, she is conclusively presumed to be wholly dependent on her husband. In re Gallagher, 219 Mass. 140, 106 N. E. 558; In re Fierro's Case, 223 Mass. 378, 111 N. E. 957.

36 In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145. This decision finds support in Lyster v. Lyster, 111 Mass. 327; Watts v. Watts, 160 Mass. 464, 468, 36 N. E. 479, 23 L. R. A. 187, 39 Am. St. Rep. 509; Rev. Laws, c. 153, § 33.

36 In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145; Mayhew v. Thayer, 8 Gray (Mass.) 172; Sturbridge v. Franklin, 160 Mass. 149, 35 N. E. 669; Watts v. Watts, 160 Mass. 464, 36 N. E. 479, 23 L. R. A. 187, 39 Am. St. Rep. 509.

37 In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145. 38 In re Bentley, 217 Mass. 79, 104 N. E. 432, 4 N. C. C. A. 559.

deceased employé: 1. A wife upon a husband with whom she was living at the time of his death. 2. A husband upon a wife upon whose earnings he is partially or wholly dependent at the time of her death"-does not prevent a husband and wife from being dependent partially or wholly upon the earnings of a child. The conclusive presumption referred to operates only where the deceased employé is the husband or wife, and not where the employé is the son or daughter of the dependents. In the latter case dependency is determined in accordance with the fact, as the fact may be at the time of the death.39

40

Under the Iowa Act it is immaterial that the surviving wife was a wage-earner and helping to support herself at the time of the injury. She is entitled to compensation if she was married to the deceased at the time of the injury and had not deserted him without fault on his part.1

Under the Washington Act a wife and children, defined to be dependents, are conclusively presumed to be dependent.2 In construing and applying this Act, a divorced man who is paying alimony is considered single.43

In a case under the Wisconsin Act it was held that, where there has been no actual separation between husband and wife in the nature of an estrangement, they may be said to be "living together," though they are not actually dwelling together," and that the fact

39 (Wk. Comp. Act, § 19, subds. [a], [b]) Cannon v. Original Mining & Milling Co., 1 Cal. I. A. C. Dec. 278.

40 Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 30.

41 (Code Supp. 1913, § 2477m16 [c] [1]) Id.

42 (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 6. 48 (Wk. Comp. Act Wash. § 5) Opinion Atty. Gen. May 16, 1912.

44 Northwestern Iron Co. v. Industrial Commission of Wis., 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877.

The relation of husband and wife, having once existed, is presumed to continue. Id.; State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587.

45

that husband and wife had been separated for more than three years, she remaining in their native country while he was here, did not create a presumption that they were not living together, where the evidence showed that the marital relations continued without a break. The court in an opinion by Judge Kerwin said: "Proof of total dependency is dispensed with under the statute, where the husband and wife are 'living together' at the time of the death of the injured employé. It seems, therefore, quite obvious that the Legislature intended by the use of the words to include all cases where there is no legal or actual severance of the marital relation, though there may be physical separation of the parties by time and distance. The 'living together' contemplated by the statute, we think, was intended to cover cases where no break in the marriage relation existed, and therefore physical dwelling together is not necessary, in order to bring the parties within the words 'living together.' There must be a legal separation, or an actual separation in the nature of an estrangement, else there is a 'living together' within the meaning of the statute. This seems to be the reasonable and practical construction of the law, and the one which we think the Legislature intended. If the law should receive the construction that there must be physical dwelling together in order to satisfy the statute, it is plain that the purpose of the law would be in many cases defeated, because in many cases the spouse may be absent from home for long intervals, although there be no break in the marriage relation, no estrangement, and no intent to separate or sever the existing relations or obligations created by the marriage contract. There seems to be no solid reason why an absence of a month, or a year, or less, should require a different construction of the words 'living together' than an absence of three years and three months, or more. The question does not. turn on time or distance, but upon the nature and character of the

*

45 Northwestern Iron Co. v. Industrial Commission of Wis., 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877.

absence and the intention of the parties respecting it. Intent is an important element in determining the nature of absence." 48

Where the evidence in an action under the New Jersey Act shows that a deceased workman, when at work, contributed a substantial part of his earnings toward the support of his wife and daughter, and that he and his wife were not living in a state of legal separation, the presumption of dependency was not rebutted, though it further appeared that he did not work steadily, was inclined to dissipate, did not live at home all the time, and that his wife's position was not very satisfactory.47

The question of intent is an important factor in determining whether the parties were living together. This is ordinarily a question of fact.48 However, what constitutes "living together," where the facts are undisputed and no conflicting inferences can be drawn from the evidence, is a question of law for the court.""

Where there is a direct legal obligation to support, as in the case of a father to his minor children, coupled with the reasonable prob

46 Northwestern Iron Co. v. Industrial Commission of Wis., 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877, supported by Ex parte Gilmore, 3 Eng. Com. B. 967; Williams v. Williams, 122 Wis. 27, 99 N. W. 431; Thompson v. Thompson, 53 Wis. 153, 10 N. W. 166; Miller v. Sovereign C. W. of W., 140 Wis. 505, 122 N. W. 1126, 28 L. R. A. (N. S.) 178, 133 Am. St. Rep. 1095.

47 Taylor v. Seabrook, 87 N. J. Law, 407, 94 Atl. 399.

48 Northwestern Iron Co. v. Industrial Commission of Wis., 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877, supported by Hoff v. Hackett, 148 Wis. 32, 134 N. W. 132.

Whether the parties were living together was a question of fact to be tried and determined by the Commission. Northwestern Iron Co. v. Industrial Commission of Wis., supra; Travelers' Ins. Co. v. Hallauer, 131 Wis. 371, 111 N. W. 527. Where the deceased employé was a foreigner, and his wife was yet in a foreign country, and he occasionally sent her money, the question whether they were living together was one of fact. (St. 1911, § 2394-10, subsec. 3) Northwestern Iron Co. v. Industrial Commission of Wis., supra. 49 Northwestern Iron Co. v. Industrial Commission of Wis., supra.