Appeal, No. 38, March T., 1951, from judgment of Superior Court of Pennsylvania, April T., 1950, No. 24, affirming order of County Court of Allegheny County, 1949, No. A-855, in case of Elizabeth Cairgle v. American Radiator & Standard Sanitary Corporation et al. Judgment affirmed.
Robert L. Prior, with him John J. McGrath, and McGrath, McGrath, & McGrath, for appellant.
Sidney J. Watts, with him Baker, Watts & Woods, for American Radiator & Standard Sanitary Corp., appellee.
Charles J. Margiotti, Attorney General, Ralph H. Behney and M. Leon Tolochko, for Commonwealth of Pennsylvania, appellee.
Before Drew, C.j., Stearne, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE BELL
James Cairgle died from silicosis on April 30, 1948 leaving a widow, Elizabeth Cairgle, claimant, from whom he had been separated since 1932, and a mistress who had lived in his home since 1942. Elizabeth Cairgle filed her claim to compensation with the Workmen's Compensation Board on the ground that she was a dependent widow. At the end of the first hearing before the referee, the defendant brought out the fact that claimant had had five (adult) children during the time she lived with her husband and three (minor) children after she separated from her husband, known from their birth as Harry Owens, born May 4, 1939, Joan Marie Owens, born July 11, 1942, and Rancy Mae Owens, born October 28, 1943.
At the second hearing, counsel for the claimant moved to amend the claim-petition to include the three aforesaid minor children of the claimant. This case was treated by all parties as if the petition for amendment had been allowed. The referee, the Workmen's Compensation Board, the County Court of Allegheny County, and the Superior Court of Pennsylvania, (a) disallowed the widow's claim in her own right, and (b) found that said three minor children were illegitimate and were not entitled to compensation benefits.
This appeal concerns only the claim of the said minor children; their right to recover depends as we shall see upon whether or not they were the legitimate children of Cairgle. Excluding all incompetent testimony, the evidence disclosed the following facts, all of which were found by the referee and affirmed by the Workmen's Compensation Board upon adequate and competent evidence:
Cairgle and Elizabeth, his wife, separated in 1931; shortly thereafter they resumed living together and
then separated permanently in May, 1932. Claimant testified that although she and the decedent never again lived together as man and wife or slept together, that she had "gone to bed with him" from time to time and as recently as August, 1947. She also testified that decedent gave her $15. to $20. every pay day until August 1947 and in this she was corroborated by a daughter and a son. This testimony was disbelieved by the referee and by the Workmen's Compensation Board. Uncontradicted testimony need not be accepted as true (Aaron v. Strausser, 360 Pa. 82, 85, 59 A.2d 910; District of Columbia's Appeal, 343 Pa. 65, 79, 21 A.2d 883; Nanty-Glo Boro v. American Surety Co., 309 Pa. 236, 163 A. 523); and unless there is a capricious disregard of relevant, credible testimony, the findings of fact by the referee, adopted or affirmed by the Board, if based upon adequate and competent evidence, will be sustained on appeal; Kransky v. Glen Alden Coal Co., 354 Ap. 425, 427, 47 A.2d 645; Jaloneck v. Jarecki Mfg. Co., 157 Pa. Superior Ct. 609, 615, 43 A.2d 430; Barkus v. Thornton-Fuller Co., 157 Pa. Superior Ct. 239, 242, 42 A.2d 320; Wahs v. Wolf, 157 Pa. Superior Ct. 181, 186, 42 A.2d 166; Dulsky v. Susquehanna Collieries Co., 116 Pa. Superior Ct. 520, 530-1, 177 A. 60.
In 1936 Elizabeth Cairgle met a man named Owens who rented and paid for a house for her. In 1945 she went to live in Owens' home although she ...