For the prosecutor, Cox & Walburg (Arthur F. Mead).
For the respondent, Perry E. Belfatto.
Before Justices Parker, Bodine and Oliphant.
The opinion of the court was delivered by
BODINE, J. This is a workmen's compensation case.
Mrs. Sally Jefferson made claim in the bureau for compensation by reason of the death of her husband by an accident arising out of and in the course of his employment with the prosecutor of this writ. The petition was dismissed in the Bureau and the action so taken was reversed by the Court of Common Pleas.
The claimant was not a member of the decedent's household at the time of his death, and was not receiving support from him but was supporting herself by work which she performed in the City of New York.
In Alexander v. Cunningham Roofing Co., Inc., 124 N.J.L. 390, 397; affirmed, 125 Id. 277, Mr. Justice Perskie, after carefully examining the authorities in this state, stated the rule governing like cases to be: "it follows that although the wife, as here, was no part of her husband's household at the time he suffered the accident and dealth, she is, nonetheless, entitled, under certain circumstances, as a matter of law to compensation as a total dependent. What are these circumstances? She must prove that the fact that she was no part of her husband's household at the time of the accident or death was not her fault; that she did not consent to or acquiesce in her separation; that she did not assert her complete independence of her husband; and that she asserted her legal dependency upon him. But when the opposite of the stated circumstances is true and the issue is one of partial dependency, then the issue is purely factual.
"We find as a fact that the prosecutrix proved her right as a dependent within the stated requirements. Additionally, the proofs show -- we so find -- that prosecutrix, in good faith, did her utmost to restore their marital relationship. True she worked; she had no alternative. But by working and helping herself and her husband she did not lose her legal status as a total dependent.
"To hold otherwise would be to lose much that has been slowly but progressively and justly earned for dependents of those who suffer injury or death as the result of an accident arising out of and in the course of their employment. It
would, moreover, tend to capitalize and condone the husband's failure to support his wife even though he be at fault. It would penalize a faithful and helpful wife simply because her husband's conduct made it necessary for her to try to support herself and thus ease her husband's obligation to do so. The legislature intended no such ...