Robert L. Prior, John J. McGrath, McGrath & McGrath, all of Pittsburgh, for appellant.
Kennedy Smith, Sidney J. Watts, of Baker, Watts & Woods, all of Pittsburgh, for American Radiator & Standard Sanitary Corporation.
Thomas McKeen Chidsey, Atty. Gen., Ralph H. Bekney, Counsel, M. Leon Tolochko, Harrisburg, Asst. Counsel for Commonwealth.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 166 Pa. Super. Page 622]
In this workmen's compensation case Elizabeth Cairgle, on September 2, 1948, filed a claim as the dependent widow of James Cairgle, whose death resulted from occupational disease. In that claim she made no reference to any children under the age of 18.
The claimant and James Cairgle had separated in 1932, after which she lived in adultery with Robert Owens (as factually found by the compensation authorities); and three more children were born. By her they
[ 166 Pa. Super. Page 623]
were named and registered at public school as Harry Owens, Jo Marie Owens and Raney Mae Owens. All were under the age of 18 at the time of Cairgle's death.
Not only did Mrs. Cairgle take Owens as her paramour, but Cairgle took a mistress into his house, who lived with him under the name of Estelle Cairgle and was publicly held out as his wife.
Elizabeth Cairgle testified before the referee to the foregoing facts. She then testified that while living with Owens she visited her husband and had intercourse with him each week. This testimony was disputed by Cairgle's mistress.
Subsequently an amendment was sought to claim compensation for the three children named Owens. The referee, without allowing the amendment, held that that matter was determined by the facts shown at the hearing on the widow's petition. He disallowed compensation on the ground that claimant was not living with nor dependent upon the deceased, and refused to find that James Cairgle was the father of the children named Owens. The board considered fully this latter question,*fn1 affirmed the referee's findings and amended findings of fact, and refused an ...