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Alexander v. Cunningham Roofing Co.

Decided: February 6, 1940.

HAZEL D. ALEXANDER, PROSECUTRIX,
v.
CUNNINGHAM ROOFING COMPANY, INC., A CORPORATION, RESPONDENT



On certiorari.

For the prosecutrix, S. Martin Mandon (Nathan Rabinowitz, of counsel).

For the respondent, Clarence B. Tippett.

Before Justices Parker, Bodine and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. The question we are called upon to decide in this workmen's compensation case is whether the determination by the bureau that the prosecutrix was totally dependent upon her deceased husband at the time of his death is correct, or whether the determination by the Pleas that prosecutrix was neither totally nor partially dependent upon her deceased husband at the time of his death, is correct.

James Alexander, husband of prosecutrix, petitioner below, was employed by respondent as a roofer. It is conceded that he died on January 15th, 1936, as the result of an accident which occurred on that day, and that the accident arose out of and in the course of his employment.

Upon the issue first stated as requiring decision, the proofs disclose that prosecutrix and her husband were married on October 20th, 1929. Prosecutrix continued to work, as she did prior to her marriage, in order financially to assist her husband who was only seasonally employed. For about two years their marital relations were free from friction. Then the husband apparently became an addict to liquor. The resultant consequences were that he became a drunkard, he was physically violent, and abusive; he became infatuated with another woman, and he was otherwise indiscreet. As a result thereof, prosecutrix was compelled to and did separate herself from her husband in 1933. She continued to work and at the time of his death was earning $13.50 a week.

Prosecutrix was apparently possessed with a deeply rooted concept of her marital obligations toward her husband. For, although separated from him at the time of his death and constituting no part of his household at the time, she tried again and again, from the day of their separation to the day of his death, to persuade him to change the error of his ways, offering to resume their marital relations if he would do so. But notwithstanding the fact that he did not question the bona fides of her pleas, he remained adamant; he refused to change his unjustifiable and wrong ways of life.

Then, too, during their separation and up and until the day of her husband's death, prosecutrix continually tried to obtain (without aid of court) support from her husband. And when

her husband had it to spare, which was not very often, he would give her small sums of money ranging between $1 and $10 at a time. For example, he gave her some money to to extract a tooth, to buy a pair of shoes and some dresses, &c.

In this state of the proofs, the bureau, on August 28th, 1936, determined that prosecutrix' husband, in January, 1933, repudiated "all marital obligations to her" without fault on her part; that prosecutrix "never acquiesced" in her husband's repudiation; that prosecutrix "never voluntarily relinquished her marital right to support" but on the contrary "never ceased to look to her husband for support;" that she was in fact "totally dependent upon her husband at the time of his death;" and that, therefore, "she was actually dependent upon her ...


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