original desertion. On this point the decedent's positive offer to return, occurring in 1952, is deemed decisive.
In Thompson v. Lawson, 1954, 347 U.S. 334, 74 S. Ct. 555, 98 L. Ed. 733, the Court held that an attempted remarriage by a deserted wife forfeited her claim to compensation since she was no longer living apart from her husband 'by reason of his desertion'. The Court reasoned that she had made a '* * * conscious choice to terminate her prior conjugal relationship by embarking upon another permanent relationship.' Id., 347 U.S. at page 337, 74 S. Ct. at page 557. By her act she '* * * had severed all meaningful relationship with the decedent.' Id., 347 U.S. at page 336, 74 S. Ct. at page 556.
In the instant case, the refusal of the offer of reconciliation evidences much the same 'conscious choice to terminate the conjugal relationship.' While not as extreme as a bigamous remarriage, both acts demonstrate an intention on the part of the wife to go her separate way.
The fact that a bigamous remarriage may be morally and legally more reprehensible does not appear to be a sufficiently distinctive feature. The Court in Thompson specifically refrained from relying upon the process of 'assessing the marital conduct of the parties', Id., 347 U.S. at page 336, 74 S. Ct. at page 556, stating, as mentioned above, that the crucial point was the status of the wife with relation to the deceased. Cf. Great American Indemnity Co. v. Belair, supra, 160 F.Supp. at pages 785-786.
Support for this analysis is found in the opinion of the Circuit Court in the Thompson case, 5 Cir., 1953, 205 F.2d 527. The court held in the alternative that the refusal of an offer to return negated the right of the wife to compensation. Id at page 529. It may also be noted that the attempted remarriage in the Thompson case occurred 15 years after the desertion; while the offer to return upon which the Circuit Court based its alternative holding was made 26 years after desertion. Thus, any argument based upon the elapsed time between the desertion and subsequent offer in the instant case (14 years) is devoid or merit.
In conclusion the record definitely established that the claimant was neither living with the decedent at the time of his death nor was she dependent upon him for support. The evidence does not establish a desertion at the time of death and there is absolutely no evidence to support the finding that she was living apart from him at the time of death for justifiable cause. Claimant, therefore, does not establish herself as a person entitled under the provisions of the Act to receive death benefits. Judgment, therefore, must go to the plaintiff. An appropriate order for such judgment will be submitted by the plaintiff.