Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 142]
Benjamin F. Motley died November 12, 1947, as the result of injuries accidentally sustained in the course of his employment with the C. F. Braun Construction Company, one of the defendants. Claiming to be decedent's dependent widow, Martha C. Motley petitioned for an award of compensation under the Workmen's Compensation Act. After a hearing at which the only testimony given was that of the claimant, the referee disallowed the claim. The Board affirmed the referee, but on appeal the court below reversed the Board and entered judgment for claimant.
The substance of claimant's testimony is as follows. Decedent left the common home in February, 1945. He did not again share bed and board with her but did return on rare occasions to visit. These visits never lasted more than part of a day. She saw him under these circumstances six times in 1945, three times in 1946, and six times in 1947. On a visit in 1947 decedent
[ 169 Pa. Super. Page 143]
was accompanied by one Amy Motley*fn1 and a little boy. He introduced them as his wife and son and addressed claimant, his lawful wife, as Mrs. Williams, her name by a previous marriage.
During the period of separation she received 'around $319.000' from decedent, which amount was given in small and irregular payments. She also received $16 a week as a result of her employment as a cashier, a monthly allotment of $37 from a son in the Army, and $5 a week as board from a grown daughter; however, she was constantly in debt. At no time subsequent to decedent's separation from her did she attempt to secure a support order, yet the referee found that decedent's average weekly wage prior to his accident was $90.
To establish her entitlement to compensation the burden was on the claimant to qualify as a dependent widow under § 307 of the Workmen's Compensation Act, as amended by the Act of May 18, 1945, P.L. 671, § 1, which repeated the language of the amending Act of June 21, 1939, P.L. 520, § 1, 77 P.S. § 562. The statute provides in part: 'No compensation shall be payable under this section to a widow, unless she was living with her deceased husband at the time of his death, or was then actually dependent upon him and receiving from him a substantial portion of her support.'
[ 169 Pa. Super. Page 144]
'Prior to the Act of 1939, where husband and wife were not living together, the widow, in order to become entitled to compensation, was required only to affirmatively establish that she was actually dependent upon him for support, and actually receiving support from him was not essential to her right to compensation. [Citing cases.] But under the Act of 1939 the fact that a wife, living apart from her husband, was actually dependent upon him at the time of his death is not sufficient in itself to establish the right of the widow to compensation; she is also required to affirmatively show as a fact that she was then receiving from him a substantial portion of her support. Her right to compensation has been made to depend upon the fact of receiving support at the time of his death.' Hendricks v. Bethlehem Steel Co., 150 Pa. Super. 257, 259, 27 A.2d 264, 265. Quoted with approval in Kelly v. Star Auto Painting Co., 161 Pa. Super. 503, 55 A.2d 426.
In his seventh finding of fact the referee stated: 'From all of the testimony taken in this matter, your Referee finds as a Fact that the claimant was not dependent upon the decedent for support at the time of his accidential injury and death, within the meaning of the Act.' The Board affirmed the findings of fact and conclusions of law made by the referee and noted that 'After carefully reviewing the entire record we are of the opinion that the claimant has failed to prove * * * that she was actually dependent upon him [decedent] and receiving a substantial portion of her support from him.'
The learned judge of the court below, however, after reciting the testimony to which we have adverted said: 'The referee found as a fact that the claimant was not dependent upon the decedent for support. The Board affirmed the finding. However, this ...