! ) t), I '-I Record No. 2735
In the Supreme Court of Appeals of Virginia at Richmond
ALBERTA HUNDLEY
v.
LUVINIA HUNDLEY, AND OTHER
PRO~I THE IXlllJS'l'IU,\L ('0 ) L\I IS$10" or \'IRGIXL\ .
R T1 L 1,~ 14-. ' 5. ~ l.Ji\rREH OF COT'll<:S 'J'O HE l•'JLCD .\ XD D1-:LTYERF.D TO OPPOS I NG C'ot·~sF.L. rrwenl:,· (•op iL· s o f cnch br ief sl1 all be filed with t he rlerk or i l1 c conri., nnd nl lcn,:; I i.wo copir:,; mniletl or de lin,recl t o oppo:--in g en1111 ~el 0 11 or lwl'orc 1hP dny 011 wl 1ich the hrie is fil ed. ~ (i. R1 :1. 1,: ,\ RU rr , PE. HriPI°:':: shall lie· nine in('ll<'s in lPng lh nll(l six ilidtP:-- i11 wicl tll, so a.:: (n l"ll11 ron 11 in (liHH' nsin11 s io 1lie printed n ·cunl, :111<1 shall l,e pri ntPlt in t~ i,ti not luss in size, a~ to heiglii nml wid th, t ha n fli p (:,.'p C' in wl1i eh the record is printed. The r,•c·orcl m1111h01· o f' ill(' <'ns0 nnrl 1rnm r :-1 or <·ou n ~el ~hall he prittl(·tl on il1c [' ront r o, <'I' of' nll hriefs. ;\f. IJ. "\V. AT'1'8, Cl erk. Court opens at 9 :30 a. m.; Adjom-ns at 1 :00 p. m. RULE 14-BRIEFS 1. Form and contents of app ellan t's brief. The open ing brief of the appellant (or t h e petition for aru>ca l when ado pted a~ 1hr open ing brief) shall contain : ta) :\ suuiCl·t index arul tabk of cita,ions w it h cases alphabetically .irr:rngcd . Cil.ition~ (If \ · ir ·~inia ca,c5 musl reier to the \'irgin ia Reports and. in addition, may rd er to other rq,cn , cO:Jta;ning- such cas<'~. (h) A brief s tatem en t of t he mat~rial proceed ings ia the Jowtr cou.-t, t he erro rs assig ned. and the ques t ions i11\'oh·cd in tin: appeal. (c) A clear and co acisc statemen t of the facts, with rc:forenccs to the pag1:s of the rt'conl ll'hc re I here is a ny 1> 0:ssibili ty that the: o ther side may question Che s tate m ent. \Vln:re tlu· fa r ts :1 1T controvcrtccl il ~hould b1· ~o ~talt:d. (d) Arg u111,,11t in s uppor t of tht: po, ilio n of appdlant. The hrid sh:ill lw s ig ned by at least o n e attn rnty prac t icing in th is cou rt, g- iving h is add rc· ~s. The appellant may adopt t h e p etition fr,r app,·al ;ig his op"C: ning brief hy so s latin g· in the pcli( ion, o r hy givin!! to o ppo~i 11 g co unsl'I writtc·n notitc of su ch intcnlion within five d,:ys oi tl,e receipt hr app,:lbnt o f the printed record, and hr iiiing a copy of ~ud 1 notice with the ckrk o f t he court. ;'(O all t'gT INDEX TO PETITION (Record No. 2735) Page Petition for Writ of Error and Supersedeas...... 1 • The Evidence ...... 1 • Assignment of Error...... 2. Law...... 3'"' · Arg11ment ...... 3• ·Conclusion ...... 6• Certificate ...... 7• Table of Citations 2 Bishop on Marriage, Divorce & Separation, Sees. 1359, 1360 ...... 5• Code Section 1887 ( 40) ...... ·...... 3• Davenport v. Davenport, 106 Va. 736...... 4• Elder v. Elder, 139 Va. 19...... 5• Holt v. Holt, 174 Va. 120; 5 S. E. (2) 504...... 5* Horkheimer v. Florkf1,eimer, 146 S. E. 614; 106 W. Va. 634 5* Johnson v. Johnson, 154 Va. 788; 153 18. E. 670...... 5• l(irby v. Kirby, 159 Va. 544; 166 S. E. 484...... -5• Lewis v. Lewis, 121 Va. 99...... 5* Loveden v. Loveden, 2 Hag. ·Con. 2...... 5• Roberts v. Roberts, 150 S. E. 231; 108 W. Va. 71...... 5 Record No. 2735 ALBERTA HUNDLEY, Appellant, vers·us LUVINIA HUNDLEY, A.ND COLLEGE OF WILLIAM AND MARY, A.ppellees. PETITEON FOR "WRIT OF ERROR AND SUPERSEDE.AS. To the Honorable Justices of the Suvrem,e Court of .Appeals of Virginia: Your petitioner, Alberta Hundley, respectfully represents that she is aggrieved by a final judgment of the Industrial Commission of Virginia, rendered on the 19th day of March, 1943, denying her compensation from the College of William and Mary as employer of John Hundley, Jr., and allowing a part dependency award to Luvinia Hundley. The transcript of the entire record of the case, together with the opinions of Commissioner Deans and Commissioner Robinson and the dissenting opinion of Commissioner Nich ols, is herewith filed. The transcript is duly bound and in dexed. THE EVIDENCE. John Hundley, Jr., was emvloycd as a janitor by the Col lege of William and Mary and sustained injuries on June 2* 30, 1942, *which caused his death on July 1, 1942. His 2 Supreme Court of Appeals of Virginia wage was $70.00 a month, or an average weekly wage of $16.15, and his wife, if a dependent, would receive $8.80 a week (R., pp. 1, 2, 16). John· Ru.ndley, ~Jr., left surviving him Alberta Hundley, his wife, and Dorothy Hundley, a child. He left surviving him also Luvinia Hun<;lley, his mother, and a brother and four sisters (R., pp. 13, 14). His child is now nineteen years · of age and married (R., p. 4). Alberta Hundley and John Hundley, Jr., separated in 1934 because of the cruel and brutal manner in which he treated her. Although she treated her husband nicely, he beat her more than once, and the day on which she left, he brutally assaulted her, and inflicted in juries which necessitated treatment by Doctor Bell for three weeks. She worked while living with him and after the last beating she left home with the daughter and worked to take care of herself and child (R., pp. 4, 5, 10, 11). That prior to her leaving· home she had him arrested charged with :µon• support (R.,. p. 8). There was 110 divorce ever applied ·for or obtained by either party (R., P~ 6). There were three children born of this marriage, two of whom died before the separation (R., p. 4). · ASSIGNMENT "OF ERROR. 1. The Court erred in holding that Alberta Hundley, the wife, was not a dependent of her husband under Section 18S7 ·( 40) of the Code of Virginia. 3* •LA"\V. The Workmen's Compensation Act provides for payment to d·ependents of compensation for the death of an employee, and Section 1887 ( 40) conclusively presumes a wife to be de pendent unless· she voluntarily deserted him. Section 1887 ( 40) reads as follows : '' The following persons shall be conclusively presumed to be next of kin wholly dependent for support upon the de ceased employee : ''. ' (a) A wife upon a husband whom she has not voluntarily deserted at time of the accident • • "" . ' '' ARGUMENT. The Commission denied compensation to the wife on the ground that the wife had voluntarily deserted her husband. Alberta -Hundley· v. Luviuia Hundley, et als. 3 There is no evidence in this case to support any such finding. The evidence conclusively proves that she and her husband separated in 1934 because he was mean to her; that on the night she left he waylaid her; she got loose from him twice · and started to run out of the front of .the house; he ran around to the other side and cut her off; she then went through a field to Fleming Brown's home where she remained under the shade of trees for a while, then started back home; her husband came around Fleming· Brown's home and cut her off again. She ran under the shade of trees and Flemin~ Brown came to her rescue, took her and her daug·hter .into his home; that when her husband left she saw Dr. Bell of Williamsbu:r:g and he treated her for three weeks for injuries which her husband had inflicted on her; that her husband refused to support her and that she had, prior to separation, had him arrested for non-support. The Commission has inferred 4* •that Fleming Brown was single. They could have and should have inferred that he was married and living with his wife and family. It certainly appears from the evidence that when Fleming Brown took Alberta Hundley and her daughter into his home that .John Hundley, Jr., ceased beat ing her and left. 'The evidence is that the wife was a good, virtuous, and considerate woman, and that the husband· brutally assaulted the wife and drove her away from his. home, and the Com mission, in order to put its stamp of approval on the assaults, had to conclude that the wife was guilty of some immoral act which justified the last assault which was made on her. This finding by the Commission is the result of an unwarranted surmise and conjecture. There is not a scintilla of evidence upon which to infer any wrongful act by the wife. The evidence is not in dispute regarding his cruelty; it is corroborated by his daughter. It is not denied by any one. The w,fe left because of the husband's cruelty and the leaving under these circumstances is not a voluntary leaving but one with just cause. It is respectfully submitted that the evidence is conclusive that the wife was forced to cease living with her husband, and establishes conduct on the part of the husband which is tantamount to desertion on his part. In the case of Da1.Jenport v. Davenport, 106 Va. 736, on page 744, this Court says : 5* *"To so treat a -wife as to render it impossible for.<-e: __ her to Jive .with her husband in safety and in .. that peace and concord evidenced in every home where both husband Supreme Court of Appeals of.Virginia and wife-bear~ the one to the other that affection, regard and considerations which are relations to each other denied, is on the part of .the offending husband desertion ·and abandon ment of :the other as fully and completely as if he himself had· left the home with intention never to return to it." In· the-case of Elder v. Elder, 139 Va. 19, page 26, it is said,: '' Cruelty on the part of husband which results in the wife's enforced separation from his bed and board, is tantamount to desertion on his part.'' See also: Horkheimer v. Horkheimer, 146 .s. E. 614 (106 W. Va. 634). . Roberts v. Roberts, 150 S. E. 231 (108 W. Va. 71). Walker v. Walker, 155 S. E. 903 (109 W. Va. 662). In the case of Lewis v. Lewis, 121 Va.· 99, page 101, the Court said: "It is the settled rule that the evidence to sustain the charge of adultery,. which is a criminal offense, must be clear and convincing.'' In the case of Holt v. Holt, 174 Va. 120, 5 S. E. (2nd) 504, page 505, the Court said: '' As the offense here is an unnatural one and involves the commission of a crime, the proof offered to establish it must be such as would 'lead the guarded discretion of a reasonable and just man .to a conclusion of guilt'. This was the wise opservation of Lord Stowell in Loveden v. Loveden, 2 Hag. Con. 2. It is quoted and adopted by this court in the cases of Throckmorton v. Throckmorton, 86 Va. 768, 11 S. E. 289, ~90; Johnson v. Johnson, 154 Va. 788, 153 S. E. 670; and Kirby v. Kirby, 159 Va. 544, 555, 166 S. E. 484, 487. "In the latter case we find this quotation: 'In 2 Bishop on Marriage, Divorce and Separation, §~1359, 1360, the rule is thus stated: ''The rule for the sufficiency of the proven facts to infer adultery is that, if they are not reasonably reconcilable with the assumption of innocence yet are so with that of guilt,_ the c.onclusion of guilt will be authorized. But it will not be if either they can be reasonably reconciled with innocence, or cannot with guilt. Circumstances merely sus- Alberta Hundley v. Luvinia Hundley, et- als. 5 picious are inadequate, though there are degrees of impru dence from which the offense will be presumed. Still care and circumspection should attend all dealings with this class of evidence. ' ' ' '' 6* •CONCLUSION. It is respectfully submitted that the dissenting opinion of Commission~r Nichols is correct, and that the evidence in this case clearly shows that the Appellant is entitled to compen sation as a dependent of her deceased husband, and denying her compensation is clearly contrary to the law· and the· evi.. dence. This petition is adopted as the opening brief, a copy hereof was mailed· to Counsel for Luvinia Hundley and Counsel for the College of William and Mary, on the 7th day of April, 1943, and oral argument on this petition is requested. For the reasons above set forth, the Industrial Commission of Virginia, as your petitioner advises and now charges, erred to her prejudice in its ruling· and judgment aforesaid; and for the errors so made and other errors apparent upon the face of the. r,ecord, that the said ruling and judgment ·should be :reviewed and reversed, your petitioner therefore prays that the -final judgment entered in this case on March 19, 1943, be reviewed and reversed, and to that end a writ of error and supersecleas to the judgment complained of be ~:wardeq_your petitioner and she will ever pray. -. I , • t • .. 'II\ . ALB:ERTA HUNDµE):, . . By -~· ·~- BANGEL,. Couµsel. · '- . ·7* •The undersigned· Counsel I?racticJng iJ!. th~ Supreme Court of AppeaJs hereby certrfies that in his judgment there is error .in the judgment complained of and in the fore- · going petition and that .the same s~~mld be ~~view~d .. A. A. BANGEL. .,. Received April 7, 1943. ·1 M. B. W ATT-S, Clerk. Received .May 10, 1943. J. W. E. June 9, 1943. ~ppeal awarded by the Court. B'ond $300. M. B. W. 6 Supreme Court of Appeals of Virginia RECORD John Hundley, Jr. (Deceased), Employee; Alberta Hundley, Luvinia Hundley, Claimants, v. College of William and Mary, Employer, iSelf-Insured. Claim No. 624-817 .. . ·Claimants appeared in person. Mr. A. A. Baugel, Attorney-at-Law, New Kirn Building, Portsmouth, Va., for Alberta Hundley. Mr. Channing M. Hall, Attorney-at-Law, Williamsburg, Virginia, for Luvinia Hundley. Hon. Ashton Dovell, Attorney-at-Law, Williamsburg, Vir ginia, for the Defendant. Hearing before Commissioner Deans at Williamsburg, Vir ginia, on October 28th, 1942. All witnesses having been duly sworn, the following testi- mony was taken. · By Mr. Channing M. Hall: I would like to move on behalf of Luvinia Hundley, mother of the deceased employee, John Hundley, Jr., that she be admitted as claimant dependent on the deceased By Commissioner Deans : You are claiming partial or to , tal Y / By Mr. Hall·: She is here to testify. I would say that it is more than slightly partial, rather natural dependency she had on this son. By Commissioner Deans: Do you want to show that there was an accident arising out of and in the course of the em ployment¥ Will it be admitted that he fell from a page 2 ~ ladder while working as janitor at the college¥- That is report, I think, Mr. Harris, Superintendent, made. By Mr. Ashton Dovell: I take it might as well stipulate it. I represent the college. I admit that the injury sustained was in the course of the regular employment. As far as we a.re advised there are two representatives of the college here. As far as we are advised from the medical officer of the col lege the death followed as result of the injury. Just get rid of taking that much evidence. ,He died about a day and a half later, accident occurred on June 30th and he died on July 1st. Alberta Hundley v. Luviuia Hundley, et als. 7 Alberta H itndley. By Com.missioner Deans: Will you also agree that he was getting $70.00 per month Y .By Mr. Dovell: Y.~s, sir.. . .·.. , . . ,. 1 • By Mr. Hall: I understand that was his;salar,y., .-• ... ; .. By Mr. Dovell: $70.00 per month, except ,~Jate1 empl9yee and got bonus of $41.50, I have it here. Never had anybody to turn over this $70.00 and $41.50 annu~l bonus. , . By Mr. Hall: I rather think that bonus should not be taken...... _ . . . By Commissioner Deans : You think I should e;cl:u,i{e tlJJs Y By Mr. Hall: I think this would be so slight would hardly be worth while. . . . page 3 ~ :By Commissjoner Deans._:: AIL parties of, µiter~st, you two gentlemen consent that $70.00 per month is t:qe compensation received by this man Y By Mr. A. A. Bangel: Yes, sir..-, . By Mr. Hall: Yes, sir, just exclude it.: . _ . By Mr. Dovelt: L would --~~Yi to-_th,e. Cqmmissioner that the Qollege !s positio~ i~ that whatever award may.- be made al).(j tP. whom_-,tt ~s. µi~de, \ ;the- Cpll~ge!s . pnly_, interest -is that the person ,wh9 .if3 dep~nde1;1t recejv:es it. :We. prefer that it be mac;le .on _u.sua): sprea;d -~~sis rathe:~ Jq.an lump sm:p.- . . . I. : B'y; Oornmi~~Qner :O~ans: ; .The D~pa,:tment usually d~duct.s ~µt .of. experiem~e _·cost\, ~ refe_r particularly to the Convict fo)!ee and th_~l Hjghw':ly P,epartl)1.~nt. . By Mr. Dovell: We don't have the authority to deduct it '. ' .... I I . •• .• . . By Mr. Hall: That ~ight be sribj~ct to q~estion . . ~.. -=.. : •.• ) •.'\ • •. -;-- .. .. t ~ ·' ,, .ALBERT.A. HUNDLEY. By Mr. A. A. -Ba~el~ .-. :- 1 , [;," • • Q. Your name is Alberta Hundley? . . A. Yes, .sJr. \ . ! 1 '., , , • · -. , - . • • • , page 4 ~ Q. Alberta, you are the wi:f e of John Hundley, deceased! A. Yes, sir. Q. You, -were -married to .him where? A. In York County, Virginia. Q. Were any ·children born of this marriage f A. Yes, sir. Q. How~~._:!llany7 1 . . :· · A. Three, one living. , 8 Supreme Court of Appeals of Virginia Alberta Hundley. ·Q. Two are dead Y A. Yes, sir. Q. The child that is living, what is her name Y A. Dorothy Schofield. i / Q. Is she married¥ A. Yes, sir. Q. She is supported Y A. Yes, sir. Q. How old is Dorothy f A. She is 19. Q. Has she any children, by her marriage Y A. Two. Q. Now, were you living with your husband on the date of his· death Y • A. No, sir, I was not. Q. When did you separate? A. Separated. in '34. Q. What caused that separation Y page 5 r A. Well, we didn't nevet get along together, he was so mean to me. This night when he waylaid me, I got loose from him twice and when I started to run . out to my front way, he ran around the other side and cut me off.. Then I went throug·h the field over to :Fleming Brown's home, under shade of trees that night. When I g·ot out from the shade was nearly to home, he came around Fleming's home and cut me off again. At that time I run under shade of back tree and Fleming came to my rescue. Q. Who is heT A. Fleming Brown, then he took us in. Q. Who took you in 7 A. Fleming Brown. . Q. Did you find it necessary to see a doctor? A. Yes, sir, I went to Dr. Bell. Q. Is that Dr. Bell of Williamsburg! A. Yes, sir. Q. Did he treat you for injuries received? A. Yes, sir. Q. Yon summoned 11im and he said he would come Y A. Yes, sir. Q. Was that the only time he ever beat you Y A. No, indeed. Q. Is that the only time you found _it necessary to leave him? · . A. No, sir, that was first time that I left him. Q. For good! Albert~ Hundley v. LuYinia Hundley, et als. 9 Alberta Hundley. A. Yes, sir, left him for good. p~ge 6 r Q~ How did you treat your husband¥ A.. I should say I treated .him nice, take ca:re of Inyself and child the whole time. I schooled her and clothed her· and he didn't help me at all. Q. When you left him did you take th~ child with you Y A. I took my child witJ;i me. Q. Were you employed prior to leaving 1 A. Yes, sir, worked at William & Mary College. Q. Did you continue working· after· you left him? A. No, sir, I left them after that. Under doctor's care about · three weeks~ Q. Did you keep the child with you until the child mar- ried Y · ·A. She is married now. By Mr, Hall: Q.' How. long has the child been married? A;._ Married ~p_o.u~ fi~e ·years. By Mr. Bangel: Q. Never been any divorce · between. you at all? A. No, sir. By Mr... Hall: Q. You·· spoke of the fact, Alberta, you took c~re of your self and clothed and schooled the child, do you mean before you separated from John Hundley! . A. Yes, sir, ever since been born. Q~ Did you take .care of· yourself too? A. Yes, sir. P.age 7. ~ . Q, When you say take care of yourself and child, .. you mean pay all livi~g ..e~penses including food y A. That is exactly :what I mean, done eyerythjng. Q. John Hundley even b~foi:~ separation was not tating care of his wife and daughter Y · · · A. 'Xhat is right. . . Q. Since. separa~~on and up, tq time of his cle~th how much h~lp clid he give . you. and child' ' · A. Haven't do1ie anything for her at all. Q. Not even a dollar¥ ~ .. N: o, st~.\_ ~ot given her ~nythi~g si,i 10 Supreme Court of Appeals of Virginia · · Alberta Hundley. Q. Since separated you have lived in Williamsburg or vi.:. . ~inityY . A. I lived here about a month after that and went to Richmond. · Q. Are you still living in Richmond? A. "Y'es, sir. · Q. Since you went to Richmond you have worked all the time? A. "Y' es, sir, worked up until now. Q. "Y' ou never then even ·before your separation, after your marriage, have been dependent on you_r husband Y · By Mr. Bangel: I submit that it is not whether actually supported her, whether legal obligation. You asked whether· ever been dependent. By Commissioner Dean·s : Got very peculiar see page 8 ~ tion, I think will let him proceed along line of ques tioning. I don't know whether have any effect on By Mr. Hall:. Q. Will you read the question: You never then even before your separation, after your marriage, have been dependent on your husband f. A. No, sir, he didn't never do anything for me. .. · Q. Had. there been other separations prior to this one in 19347 A. No, sir, that is only separation. Q. You never brought any procedure against him £or sup- port of yourself and child Y A. Yes, sir, I did. · · Q. Where did you bring that? A. York County. Q. Did· the Court require him to make payments to you 1 A. He told him to go and do better, that is all. · Q. The Court didn't put him under order to support either you or child Y A. No, sir. 1 Q. What judge tried it, Mr. W. E. Hoge, Juvenile and Do- mestic Relations Y · A. I don't know. Q.. What year did you bring that proceeding? A. That was just, in the same year, in 1934. • I Alberta Hundley v. Luviuia Hundley, et a.ls. 11 Alberta Hu~ndley. Q. Do you remembet if it was tri~d by Judge page 9 FHoge or Judge Shields Y . ,. . .. A. I think it was Judge Shields. By Mr. Hall: Your Honor, one succeeded the other. Q. Was that proceeding you started for suppott or prose cuting him for night of separation y, A. 'fhat was for non:-support, that was before the night. Q. Yori brought that for non-support even before the beat ing you testified to Y A .. Yes, sir, tb~t .is right. . Q. YOU brought no warrant for the occasion YiOU mentioned, where you say :µe. ch~sed you Qyer_ to Fleming Brown's:Y. . A. Yes, sir, I warranted him for that, but :r take that in. Q. That never came to tri~l 7 A. No, sir. Bj Co~issioner Deans : Q. While living here in Williamsburg,-you lived here too? A. We were living in Y,9.rk :County. Q. Never had a home here Y -A,. :N" o,. , sir. ( . '. . .; , ...... _ :. . Q. When you cam:e· to Williamsburg you had a home here in Williamsburg! · . 4 .. I .wa~ j.ust only .working, up here. Lived in York County, worked. in. J:~mes. City. Q~ Coming back and forth Y . A. Yes,. sir. . . _ . . page 10 ~ .. Q.. Pfd you Ji)id. ~t ne;ce~sary to le~ve your home anj .tjype <>,tlier .than. t~is. last time Y A. No, sir; that is only time I~e£t ther~ .. Q. Did you spend any nights away from homeY A. No, sir. Q. Did yp:u go to Fleming Brown's home Y ~. y ~,. s~r ·. - '' -.~ ' ' . ' Q. Wliy did you go rover there! A. Just visiting. .. Q. Ever take beating from: him and had to stay over at :Fleming Brown's house 7 · · A. No, sir. Witness dismissed·.- .~ . f2 Supreme Court of Appeals of Virginia DOR10THY SCHOFIELD. By Mr. A. A. Bangel: .. Q. You are tl}e daughtet 'oi: John Hundley and Alberta Hq.ndley? A. Yes, sir. · ·· Q. Did you live' with your mother and father until some~ time about six or seven year.s ago Y . A. Yes, sir. : ~ . · - · · · · · Q. How did your _mother treat your father while they lived together? - A. She treated ·hi~ all right. Q. How did your father treat your mother? A. He didn't treat her so good. · page 11 ~ Q. Have you ever seen him strike ·her Y A. Yes, sir. Q. Once or many times 7 A. Lots of times. Q. Ever hear him use violent and abusive language towards her? A. Yes, sir. Q. Did you leave home with her? A. Yes, sir. Q. Had she left home before that night, stay away from him at all? A. No, sir. . Q. Did your father throw his money away or give anything · to your mother to support yourself and her while living to- gether? · A. He didn't give anything to us at all. Q. Did your mother have him arrested for non-support,- you didn't hear the judge tell him to do better Y A. No, sir, I wasn't there. Q. They were living together at that time? A. Yes, sir. Q. What caused her to' leave him, what was the last thing? A. He beat her and everything and just had to leave. Q. Had to leave for he:r health 7 A. Yes, sir. · Q. Did she take you with herY A. Yes, sir. page 12 ~ Q. How old are you now? A. Twenty. Q. How old were you when separation took place? A. About eleven years old. Alberta Hundley. v. Luvinia Hundley:, et .als. 13 Liwinia H1.tndley. Q. How long have you been married Y A. I have been married five years. Witness dismissed. By Mr. Bangel: That is our case. LUVINIA HUNDLE,Y, Claimant. By Mr. Channing M. Hall: Q. Your name is Luvinia Hundley? A. Yes, sir. Q. What is your age Y A. I am seventy-two. Q. Are you the mother of John Hundley, Jr., deceased? A. Yes, sir. , Q. Is your husband living or dead? A. No, sir, he is dead. Q. What year did he die? A. He died in 1931. · Q. How long has your son, John Hundley, Jr., been work· ing for the College of William & Mary? A. Joe worked with father ever since about 19 years old, John had been working there. My husband been page 13} working there less than that, he has been dead twelve years. Q. The evidence is as to the time of separation in 1934, since that time has vour son lived in the same house with you or different house' A. He had home of his own, lived in his own house. Q. You lived in the house which belongs to the estate of vour deceased husband? ., A. Yes, sir. · Q. What other sons have you than John Hundley, the de· ceased? A. I had two but both are dead. Q. You have no other son living nowY · A. I have one son living now, I had three sons. _ Q. Tell us about the one that is living ~ow? - · . A. He is partially blind. I and him .stay together. Re- tries to do what he can for me, not much he can. Q. ·How long has he been partially blind Y A. Born so. Q. Is he able to go out to· workY A. Yes, sir, he goes out to wotit.:· : i4 Snpreme Conrl of Appeals of Vi:rginia Liwinia HiindZey. ·Q. What kind of workf . . A. Works with well digger now. Such as plowing, very little he can do of that. He can't see so good. Q. After your son's wife left him in 1934 did your son take meals with you or over at his own home! A. At my home. I cooked for him time she left until he died. Q. What p;:rovision if any did John Hundley,. page 14 ~ Jr., make for you up to the time of his death 7 A. On an average of $6.00 per month, and gave me groceries. Bring me some g:ceceries alang with him, I cooked his meals. · Q. Did he bring rations and had·. you. cook and gave you mo:i:i,ey besides 7 A; Yes, sir. Q. How long had that gone on prioi.· to the date of his death? . · A. I cooked for him nine years. Q. How much of that time did· he. give you this money per month in addition to rations? · E Never commenced befdre d.bout two years after my husband died. Q. Dtd. you tell me what year your husband died! A. 19Bi. . . . · -Q. Sinc·e the death of your husband what means or what persons have been the source of your· su.pporU, A. John, h~ was the most - Q. rs: it you.r statement tfiat -you eonsidered; yourself as being a dependent on that son John 1 · A. Yes, -sit, I did. Q: Wholly, ~n a lar.ge measure or only slightly T A. Just only slightly. I have four daugnters but all are married, they give me what they could. Q': you: ind your. afflfoted! son: li:ve together' A. Yes, sir, John is my only support. page 15 ~ By Mr. ~Hangel· :· , . . . ~ ... Row ttiany childrep., nave- you had f A. Seven cliitdten: · . . . . - Q. How many a:r~ Mi~e'.Y: 1) A. Five Mive toiln:v.·. , : Q. One of th6Sef· is~ sd·Ju wh:o. livCJd' with you and he is not married? A. Been married, him and wife apa:rt.. Q. He and wif~ separated f Albefta ·Hundley v.· Lu-rim~· Hundley, et als. Lu.vinia Hundley. A. Yes~ sir. Q. He is working Y · A. He works a .little, not much can -depend on. Q. The blindness you speak of is the same blindness he had since .child 7 ., ,4.. Yes, sir. . . Q. He was not so blind he could not get married Y A. Yes; sir, he ·got married. · By Mr. Hall: Q. The other living children are married daughters living away on their own Y · .4. Yes, sir. Witness dismissed. Case ended. j~h-12-3-42. page 16 r John Hundley, Jr. (Deceased), Employee; .AJ.. · berta Hundley, Luvinia Hundley, Claimants., .v. College of. William and Mary, Employer, Self-Insured. Claim No. 624-817. December 22nd, 1942. . . Claimants appeared in person. Mr. A. A. Bangel, Attorney-at-Law, New Kirn Bldg., Ports.. mouth, Va., for Alberta Hundley. Mr. Channing M. Hall, Attorney-at-Law, Williamsburg, Virginia, for Luvinia Hundley. Hon. Ashton Dovell, Attorney-at-Law, ,vmiamsburg, Vir ginia, for. the Defendant. Hearing before Commissioner Deans at Williamsburg, Vir.. ginia, on October 28th, 1942. DEANS, Commissioner, rendered the opinion. John Hundley, Jr., was a janitor and employee of the Col Ieg~ of William and Mary, and sustained injuries ·on June 30th, 1942, which resulted fatally on July 1st, 1942. His wage 16 was $70.00 per month, which multiplied by 12 and divided by 52 would give an average weekly wage of $16.15, or compen sation for a total dependent of $8.88. The sol~ question at issue is that .of the pa:y;ty to whom the compensation would be payable if any. Application for hearing was :filed by Al berta Hundley, wid9w, age 38, and claim was also made on behalf ·of Luvinia Hundley, mother of the deceased. Alberta Hundley testified she married John Hundley in York County, Virginia, and a~ res.ult of t~is mar page 17 }- :riage there were three children, two of whom are now dead. The surviving child is Dorothy, age 19, and who is now married and known as Dor(?thy Schofield and is the mother of three children. Alberta further testi-.. :tied' that ·she was not living· with John H~ndley ~t the time of his death inasmuch as thoy had separated in 1934. They had never gotten along well together and on this occasion in 1934 she went to the home of one Fleming Brown when John waylaid her and apparently gave her a beating. She had taken her child Dorothy with her. Fleming Brown took both her and Dorothy into his home. As result of this beating she required the services of Dr. Bell of Williamsburg. She was asked if this was the only time that her husband had ~ven her a .~.eating and replied in the negative but was th~ first and orily time she left him. On this occasion she left him ror good. She claims that she was a duteous wife and after the separation she schooled ~nd clo.thed Dorothy without any assistance whatever from her husband. Prior to this incident in 1934 shew~& w,orking for ·William and Mary Col lege but left the employ of this concern but managed to sup port hers~lf· and cJvl<;l aft~rwards. In fact, she claimed that her husband w~s not supporting her and Dorothy even before the separation and since t~~ .. separ~tion she ei;nphatically s_t3:te~ th,a~ .he. had contrib;u.tQ.d nothing whatsoever toward their support. About a month after thi~ in~i~ thf1.t he ~as. im~t~11' Q. '' Did you find it necessary to leave your home any time other than this last time?'' A. ''No, sir, that is only time I left there.'' Q. '' Did you spend any nights awa.y from home?'' A. ''No, sir.'' Q. "Did you go to Fleming Brown's home?'' A. "Yes, sir." . Q. '' Why did you go over there t '' A. "Just visiting.'' · Q. '' Ever take beating from him and had to stay over at Fleming· Brown's house?'' · A. ' 'No, sir.'' The above is the evidence relative to the claim of Alberta Hundley. She admitted that her purpose of going to Flem ing Brown's home on other occasions was that of "just vis iting".She denied that she ever had to go to Fleming Brown's home because of any beating that her husband may have given her. The evidence clearly indicates that she left the home of her husband first to go to that of Fleming Brown and because of this incident it appears that it was necessary that he remonstrate her and force was probably used. How ever, she made the trip that night and then left her husband. She was frank to admit that he did not support her page 19 ~ before nor did he give support afterwards. The separation existed for approximately eight years and nowhere does it appear that she made any effort to re turn to his home or to resume the marital relationship. In fact, she left York County and moved to Richmond talcing the child with her. A careful consideration of the evidence fails to indicate the separation was due to any misconduct on the part of John Hundley .but rather that it was due to the determination of Alberta Hundley to visit at the home of Fleming Brown which did not meet with the approval ofher husband. As this claim ant was not able to show that she had not voluntarilv de serted or abandoned her husband at the time of the accident, and ·as the evidence shows that the act was one on her part rather than on his, the finding must be made that she did voluntarily desert or abandon her husband and that ~such desertion or abandonment existed at the time of the accident, 18 Supreme Com·t of Appeals of Virginia and for this r(;!ason her rights to ·benefits as a depe.ndent widow is denied. ' . . · Luvinia ~~d.ley, age .72; mother.of John Hund!ey, !r., the deceased employee, testified that her husband died m 1931 and that John worked at the College ·of William and Mary ever since he was i9 years of age. .Since Joh~ and A.lberta separated in 19S4 John was living with his mother. She has one o~er s<;ni living with ~er who has been partially blind since birth but does got out to do sue~ work as he is able. Her son John gave hei; approximately $5.00 per month, also gToceries. He would bring in the groceries and she would cook them for him. She lives at the home which was owned by her late husband. In addition to J;ohn and the other. son E!he' _has· four .Qaughter~, a.11 of whom are .map;ied, ·and they assist her to the best of their ability. She admitted that her dependency on John was partial. Considering the fa~t that her husband left her the home place, she~ John and page 20 ~ the blinq_ son ~ived there, the blind son worked, the . .. : . iour .daugh~e_rs ~ssist_e.d her ~o~e and John paid h~r $5~00. p~r, month- and f urn~sh~d t)le _groceries, presumably that_ h~ ~~d ..her_ cook them ~or Jnmself,. tl;te dependency must l;>e ,:trr~ved ~t fro~. an ~pproximate standpoint rather than wit~ any degree·o.f: accuracy~ The blind son was in no way de peµdent .o~ tp.e deceased employee inas~uch as he worked. . .Qoµsider~~g· ~he entir_e evid~nce~ the :finding is made that Lawnia ~unqley. was depe~dent .on the de~eased employee t9. ,the exte~t. of 20 per ~cent. qf the amount. necessary, for her _s,upport .. A~ .a. ,total d~p~n<;1ent would, be ·entitled to $8.88 per w:eek~ 911~ 20.. i>~r cent.. ?ependent would be entitled to $1..78 per week! .. -:An. award will .be· entered in favor of Luvinia ;Hu~dley f~r. ~qmpe11sation at-$f78· per !week, payable every f~~r. weelt~? ~9t a, peri.o? °-f. pOO we~~s,. :unle~s. subsequent .c?n Acc. 6-30-42 NOTICE OF AW.A.RD Case of John Hundley, Jr. Date: December 22, 1942. TO: College of William and A .. ~ Bangel, Attorney R Mary, (Employer) New Kirn· Building Williamsburg, Virginia. Portsmouth, Virginia · AND: Mrs. Alberta Hundley, Channing M. Hall, (Claimant) · Attorney R 510 N. 4th .Street, Williamsburg, Virginia. Richmond, Virginia. Hon. Ashton Dovell, AND: Self-Insured. (Insur Attorney R ance Carrier) W_illiamsburg, Virginia. .... ~· ·' ... - ~ Mrs. Luvinia Hundley, . R. F. D. No. 2, • ;·,:· ' • .,:,' a • Williamsburg, Virginia~ You are hereby notified that a hearing was held in the above styled ca$e before Commissioner Deans at Williams burg, Virginia, on Octo her 28, 1942, and a decision rendered on December 22, 1942, denying Alberta Hu~dley compensa tion on the grou~d that the evidence indicated Alberta Hund ley deserted or abandoned her husband, but directing an award in favor of the deceased 's mother, Luvinia Hundley, based on 20% dependency, payable in the following manner: To Mrs. Luvinia Hundley, $1. 78 per. week, payable every f ~r weeks, beginning June 30, 1942, to continue for a period of· three hundred (300) weeks, unless subsequent conditions require· a modification. 20. Supreme Court of Appeals of Virginia To proper parties, the costs of all necessary page 22 ~ medical, surgical and hospital expenses incident to the injury which caused the death of the de cedent, a~d burial expense not to exceed the su_m of One Hundred Fifty ($150.00) Dollars. To Channing· M. Hall, Attorney for the claimant, the sum of Fifty ( $50.00) Dollars, to be deducted from the compen sation above awarded. The defendant will pay the costs in this proceeding. INDUSTRIAL COMMISSION OF VIRGINIA PARKE P. DEANS, -Chairman. Attest: W. F. BVRSEY, SeQretary. page 23 ~ John Hundley, Jr., (Deceased) Employee, Al berta Hundley, Luvinia Hundley, Claimants, v. . College of William and Mary, Employer Self-Insured.. Claim No. 624-817 March 19, 1943. Claimants did not appear. A. A. Bangel, Portsmouth, Virginia, for .Alberta· Hundley. Channing· M. Hall, Williamsburg, Virginia, fot Luv:il\ia Hundley. · · Hon. Ashton Dovell, Williamsburg, Virginia, for the de fendant. Review before the full Commission at Richmond, V:irginJ~, January 20, 1943. ROBINSON, Commissioner, rendered the opinion. This case came on the review docket at the request of At torney A. A. Bangel, Attorney for Alberta Hundley~ one of the claimants in this case, who felt aggrieved at the decision of Chairman Deans, who rendered the opinion on December 22, "'-1942, allowing compensation to Luvinia Hundley, mother of· the deceased,· on th~ basis of 20 per cent dependency. ·The majority of,t]le Commission has carefully considered the rec ord of this ca~e in its entirety and it .is their opinion that Alberta Hundley v. Luvinia Hundley, et als. 21 the preponderance of testimony supports the findings of fact and conclusions of law as set forth in the opinion of Deans, Chairman, rendered on December 22, 1942, and the award thereon of said date and the same are, therefore, adopted and affirmed as those of the majority of the Commission. page 24 } John Hundley, Jr. (Deceased) Employee, Alberta Hundley, Luvinia Huridley, Claimants, v. College of William and Mary, Employer. Claim No. 624-817 March 19, 1943. Claimants did .not appear. A. A. Bangel, Attorney-at-Law, New Kirn Building, Ports mouth, Virginia, for Alberta Hundley. Channing M. Hall, Attorney-at-Law, Williamsburg, Vir ginia, for Luvinia Hundley. Hon. Ashton Dovell, Attorney-at-Law, Williamsburg, Vir· ginia, for the defendant. Review before the Full Commission at Richmond, Vir ginia, January 20, 1943. · NICKELS, Commissioner, dissenting. The burden to establish vol~ntary desertion or abandon ment at the time of the accident under Section 40 (a) of the Act rested upon the defendants. In this regard the record shows without contradiction that the wife left the deceased because of cruelty amounting to assault and battery and non support. The implication that the purpose of the visits by · the wife to a neighbor's house were for improper purposes so as to constitute separation or .abandonment is not sup ported by a preponderance of the evidence. The mother of the deceased is no doubt a worthy person and deserves the most sympathetic consideration. How ever, the law must be interpreted in the light of page 25 ~ the facts proven in the record. A conclusive· pre- sumption of dependency on the part of the widow must prevail in the absence of facts establishing voluntary desertion or abandonment. The record shows the widow left the deceased because of abusive conduct and his failure to ·22 Snpl".eme .Court. of Appeals of· Virginia support her and their daughter. The responsibility to rem~dy the marital rift because of those circumstances rested squarely upon the shoulders of the deceased. He made no effort what soever toward a reconciliation.. His failure to do so, in the absence of a divorce, indicated that he acquiesced in the sepa ration. The record is silent for anv facts or circumstances to justify him in obtaining· a divorce a mensa et thoro. It is my opinion Jhe record shows Alberta Hundley, the widow, to be the dependent of the deceased under Section 40. of the Act. page 26 ~ DEPARTMENT OF '1VORKMEN'.S COMPEN.. · SATION ll~DUSTRIAL COMMISSION OF VIR.QINIA RICHMOND Claim No. 624-817 NOTICE OF A WARD Case of John Hundley, Jr. Accident 6-30-42. . Date: March 19, 1943. TO : College of William and A. A. Bangel, Attorney R Mary, (Employer) New Kirn Building Williamsburg, Virginia. Portsmouth, Virginia AND-: Mrs. Alberta Hundley, Channing M. Hall, (Claimant) Attorney R 510 North 4th Street, Williamsburg, Virginia. Richmond, Virginia. Hon. Ashton Dovell9 AND: Self-Insured. · Attorney R Williams burg, Virginia. _ Mrs. Luvinia Hundley, R. F. D. No. 2, Williamsburg, Virginia. You are· hereby notified that a Review was held in the above· styled case before the full Commission at Richmond, Vfr~inia, on ,Jan nary 20, 1943, and a decision rendered March ~9?-1943., by R-0bins·on, Commissioner,· adopting· the Findine;s of. Fa~t ·and .. Conclusions of Law of the Hearing Commis- Alberta Hundley Y. Luvinia·· Hundley, et als. 23 sioner a.s those of the Full Commission and affirming the award of December 22, 1942. INDUSTRIAL 00Ml\H8SI!ON OF VIRGINIA PARKE P. DEANS, Chairman. ..Attest: W. F. BURSEY, Secretary. page 27 } I, W. F. Bursey, Secretary of the Industrial Commission of Virginia, hereby certify that the foregoing, according to the records of this office, is a true -and correct copy of statement of :findings of fact, conclusions of law and other matters pertinent to the question at issue in Claim No. 624-817,, John Hundley, ,Tr. (Deceased), Employee, Alberta Hundley, Luvinia. Hundley, Claimants, versus Col lege of William and Mary, Employer, Self-Insurer. I further certify that .Luvinia Hundley and College of Wil liam and Ma.ry, through counsel, were notified that Alberta Hundley did request the Secretary of the Industrial_ Com mission of Virginia to furnish certified copy of the record, including the evidence, for the purpose of an appeal to the Supreme Court of Appeals of Virginia. I further certify that as evidenced by United States Postal registry return receipt card, counsel representing Alberta Hundley received on March 22nd, 1943, copy of award of the Industrial Commission of Virginia, dated March 19, 1943. Given under my hand and the seal of the Industrial Com mission of Virginia this the 30th day of March, 1943. (Seal) W. F. BURSEY, Secretary Industrial Commission of Virginia. . A Copy-Teste: M. B. WATTS, C. C. INDEX TO RECORD Page Petition for Writ of Error and Supersedeas...... 1 Record ...... 6 Hearing ·October 28, 1942 ...... 6 Alberta Hundley ...... ·7 Dorothy Schofield ...... 12 Luvinia Hundley ...... 13 Opinion of Deans, Commissioner, December 22, 1942. . . . 15 Notice of Award, December 22, 1942...... 19 Opinion of Robinson, Commissioner, on Review, March 19, 1943 ...... 20 · Opinion of Nickels, Commissioner, dissenting ...... 21 Notice of Award, March 19, 1942...... 22 Secretary's Certificate ...... 23