The opinion of the court was delivered by: CLARY
This is a proceeding under 33 U.S.C.A. § 921(b) for review of an award of death benefits under the Longshoremen's and Harbor Workers' Compensation Act. Provision for such benefits is made in 33 U.S.C.A. § 909(b) for the 'surviving wife' of a deceased employee. It seems established, and all parties involved agree, that to qualify as a 'surviving wife' one must fall within the definition of 'widow' contained in 33 U.S.C.A. § 902(16). See, e.g., Weeks v. Behrend, 1943, 77 U.S.App.D.C. 341, 135 F.2d 258, 259; Williams v. Lawson, 5 Cir., 1929, 35 F.2d 346. The statutory definition reads:
'The term 'widow' includes only the decedent's wife living with or dependent for support upon him at the time of his death; or living apart for justifiable cause or by reason of his desertion at such time.'
Before proceeding further, disposition must be made of a preliminary issue. The Commissioner argues that the issue of 'living apart' was not properly raised at the hearing, and cannot, therefore, be advanced on review. It is true that the parties agreed at the commencement of the hearing that the only issue was one of 'dependency'. However, no testimony directly relevant to 'dependency' was thereafter adduced. Indeed, the entire hearing consisted of an inquiry into the alleged desertion and subsequent 'living apart'; and it is to this precise issue that the Commissioner's findings relate. Thus, the question is properly before the Court and, since it is the only issue raised on plaintiff's motion, discussion will be restricted to it.
The relevant testimony appearing in the transcript,
upon which the Commissioner places exclusive reliance to support the award,
may be summarized as follows:
Claimant and the deceased employee (hereinafter referred to as decedent) were married in Philadelphia in 1928; and except for an eighteen-month period during which claimant lived in Detroit with her parents, they lived together as husband and wife until 1938 when decedent left the claimant. Claimant had given him no cause to leave and had not agreed to his departure. Although she said that he left 'because of Nancy', she did not reveal the basis of this statement, and it is clear that it is supported by nothing decedent had said to her. The Commissioner noted for the record that one Nancy Smith had filed a 'notice of election to sue a third party' under 33 U.S.C.A. 933(a) on behalf of herself and her minor daughter Joyce Smith in which she apparently alleged that she was the 'surviving wife' and Joyce the daughter of the decedent.
Both parties were represented at the hearing. At an indeterminate date after his departure, claimant sought out decedent and asked him to return, but he refused to speak to her. Approximately one year after the separation claimant saw decedent again for the first time. They began dating twice a month and continued to do so until January 1955 when claimant last saw decedent. Throughout this period of 'dating' they occasionally spent nights together as man and wife; and decedent at times gave claimant money ranging in amount from $ 3 to $ 10. On their meetings they sometimes spoke of reconciliation; and decedent asked claimant to return to him a number of times, the dates of which she could not remember, but she testified specifically of one such request which occurred in 1952. Claimant, however, refused. The record is barren of any explanation for the refusal other than the following testimony of claimant given on cross-examination:
Claimant also admitted to having a boy friend beginning in 1950 and apparently continuing through the date of the hearing, September 17, 1957.
Anna Fitzgerald, called as a witness on behalf of Nancy, testified that she first met Nancy after 'her and George (decedent) were married.' (N.T. 97.) She was uncertain of the date of this meeting and offered no facts to buttress the conclusion contained in her statement.
Initially, the Court may state that it agrees with the Commissioner that the evidence indicates a desertion in 1938. Regardless of whether decedent left claimant 'because of Nancy', the undisputed testimony of claimant that he left without cause and without her consent, and that he refused to speak to her when she sought his return establishes a desertion within the meaning of the Act. A desertion may be predicated on grounds other than those related to marital misconduct. Cf. Great American Indemnity Co. v. Belair, D.C.D.Conn.1957, 160 F.Supp. 784, 786, affirmed per curiam, 2 Cir., 1958, 254 F.2d 131.
The Commissioner seeks support for his findings that claimant was living apart from decedent at the time of his death by reason of his desertion and for justifiable cause in three facets of the testimony: (1) claimant's assertion that decedent left 'because of Nancy'; (2) Anna Fitzgerald's testimony that Nancy and decedent had married; and (3) the fact that Nancy had filed the notice referred to above.
From this evidence the Commissioner concludes that a meretricious relationship existed between Nancy and decedent. He then states that it is reasonable to infer from Nancy's 'claim' to be the 'surviving wife' that such relationship continued until decedent's death. In light of this, the decedent's offer to return is discounted on the theory that he could not seriously and sincerely make such an offer due to his infidelity; and claimant was therefore free to refuse. Hence, it is argued, the desertion continued unaffected until death, and the infidelity was itself justifiable cause for living apart.
Whether an offer of reconciliation made under the circumstances found by the Commissioner would preclude claimant from compensation under the Act, see Thompson v. Lawson, 5 Cir., 1953, 205 F.2d 527, affirmed 1954, 347 U.S. 334, 74 S. Ct. 555, 98 L. Ed. 733, need not be decided; for the finding of continued infidelity to the time of death cannot stand.
Before stating the conclusions of the Court, it is appropriate that the general principles of review here applicable be briefly outlined. The parties have agreed that the criterion to be utilized in assessing the findings is the familiar one of 'substantial evidence on the record considered as a whole'. See O'Leary v. Brown-Pac.-Maxon, 1951, 340 U.S. 504, 508, 71 S. Ct. 470, 95 L. Ed. 483. This test is embodied in the Administrative Procedure Act, 5 U.S.C.A. § 1009(e)(5), which Act governs review of compensation orders under the Longshoremen's Act. United States Fidelity & Guaranty Co. v. Donovan, 1954, 94 U.S.App.D.C. 377, 221 F.2d 515, 518 note 12; Colonna's Shipyard, Inc., v. O'Hearne, 4 Cir., 1952, 200 F.2d 220, 223; Great American Indemnity Co. v. Belair, supra, 160 F.Supp. at page 785. See also, O'Leary v. Brown-Pac.-Maxon, supra, 340 U.S. at page 508, 71 S. Ct. at page 472. While the difficulties encountered in applying this standard are manifest, guidance is not lacking. The principles announced by Justice Frankfurter in discussing court review of administrative determinations under the Administrative Procedure Act are of immeasurable assistance. Speaking for the Court in the context of review of a Labor Board order he stated: