in reliance upon the certificate, but in the instant case the statement was made after the note had been discounted and certainly was not the inducing cause of the loan. We think that Murray v. McDonald requires us to hold that the testimony of the cashier of itself, unsupported by proof that the proceeds of the note were actually used for the benefit of the wife, is not available as an oath against the oath of the wife. It follows that the clear, and precise testimony of the wife has not been rendered dubitable by that of the cashier and that in the state of the testimony she is entitled to relief.

Now, May 15, 1922, rule to open judgment absolute; the judgment is opened and defendant let into a defense; an issue is awarded wherein the Lehigh Valley National Bank shall be plaintiff and Addie I. Craig shall be defendant, which issue shall be created by the plaintiff's statement of claim and the defendant's affidavit of defense thereto; and the defendant shall file her affidavit of defense within fifteen days after the filing and service of plaintiff's statement of claim, in default whereof, this rule shall be discharged. Stay of execution extended to final judgment.

CREASY v. PHOENIX UTILITIES CO.

Workmen's Compensation-Act of June 2, 1915, P. L. 736, and June 26, 1919. P. L. 642, Art. 3, Sec. 307, Par. 9- Widow -Dependency-Family Relation—Scparation-Obligation to Support-Repudiation-Acquiescence-Facts and Law-Review on

Appeal.

A husband sent his wife to her parents' home; promised to secure employment nearby and to support her; then sold the furniture and never returned; the wife twice instituted non-support proceedings against him, although he was never apprehended; several times she saw him at a distance, but he always eluded her; to the time of his death, the wife worked for a short period in a store or factory, and thereafter helped in the housework at her parental home, in return for which her father permitted her and her daughter to remain there. Held, That, under the Workmen's Compensation Act, she could recover compensation.

The court has power to review the question of dependency. When husband and wife are not living together, actual dependency must be shown. It may be shown by the fact (a) that the husband

wholly supported the wife, or (b) that he contributed to her support such sums as partially supplied her subsistence, or (c) that in such instances in which he has failed or refused to support or contribute to her support, she has not by word, act or course of conduct acquiesced in his failure or refusal, and thereby, as between them, absolved him from his marital obligation.

an

If, in order to maintain herself and their children, she has earned subsistence, or has received subsistence from relatives or from charitable sources, the receipt of such subsistence will not be held acquiesence unles sit has so long continued and is accompanied by other circumstances (e. g. making no effort to prosecute for support) which in their combined effect are equivalent to a complete abandonment of her right to the enforcement of the legal obligation of husband.

the

In the Court of Common Pleas of Lehigh County. No. 1 April term, 1921, Workmen's Compensation Docket -Ella Creasy v. Phoenix Utilities Company. Appeal from Workmen's Compensation Board. Decision Reversed.

Aubrey, Steckel & Senger, for Claimant.
Butz & Rupp, for Insurance Carrier.

Reno, J., May 17, 1922. The claimant, widow of a deceased employe, appeals from the decision of the Workmen's Compensation Board, denying an award of compensation to her and, in that respect, reversing the decision of the referee.

A brief summary of the referee's findings of fact are: Claimant and decedent were married December 25, 1917, and lived for a time with her parents at Salem, Virginia, and later went to housekeeping at Hopewell, Virginia. On November 2, 1918, decedent sent claimant to her parents' home and promised to secure employment at Norfolk which is near Salem, and to support her. Having sold the furniture, he left and never returned to claimant. After failing to hear from him, claimant twice instituted non-support proceedings against him, but on neither occasion did the authorities apprehend him, although several times she saw him at a distance but he always eluded her. He was killed May 10, 1920. During the interval claimant worked for a short period in a store or factory. and thereafter helped in the housework at her parenta! home in return for which her father permitted claimant and her daughter to remain there. The referee awarded compensation.

From his award, the insurance carrier, intervening, took an appeal to the board, alleging that "There was no evidence of legal sufficiency to sustain referee's finding of fact and conclusion of law that claimants were dependent upon the decedent." The Board holding that "in case the widow was not living with her husband, actual, and not mere potential or prospective, dependency must be shown," reversed the referee. Hence the appeal.

When the case first came before us we had considerable doubt as to our power to review that which in the light of Morris v. Yough Coal and Supply Co., 266 Pa. 216, 222, seemed to be a finding of fact. But the case of Callihan v. Montgomery, 272 Pa. 56, recently decided, as well as the concession of learned counsel for appellee at the re-argument of the appeal, have totally removed whatever doubts we may have entertained.

It is clear that at the time of decedent's death claimant was not receiving any support from him. Hence, if the clause "actually dependent upon him for support," as used in the act, (section 307: paragraph 9) means that the claimant shall at that time be actually receiving support, the board is right and must be sustained. If, however, the clause contemplates the existence of such relation between the parties whereby the wife, although not then in receipt of support from him, may demand and compel support and actually looks to him for support, the claimant should be allowed to recover. It is clear that claimant did not desert her husband and that, while she may have agreed to a temporary separation, she never absolved decedent from his legal or moral obligation to support her; but, on the contrary, repeatedly sought to compel him to perform that obligation. In short, although the husband abandoned her and repudiated his legal obligation to provide support she never acquiesced in that repudiation or refusal.

This section has been construed by the appellate courts, but not upon the facts disclosed by this record. The leading case is Morris v. Yough Coal and Supply Co., supra. There it is said:

"The term dependency, in the statute, contemplates actual dependency and must affirmatively appear in the record as a fact. No rigid rule can be laid down as to the amount or character of evidence necessary to show

*

actual dependency; therefore each case must be controlled by its own circumstances. But the term actual dependency does not mean sole and exclusive support. Dependency of married people is not controlled wholly by the legal obligation springing from the marriage contract. This obligation, however, is one of the elements to be considered in determining the fact of dependence. A wife, not living with her husband, who is not supported wholly or partly at the time of the accident by him is not a dependent within the meaning of the statute. The separation may amount to a repudiation of the husband's legal obligation to support, acquiesced in by the wife: New Monckton Collieries, Ltd., v. Keeling, 6 Negligence and Compensation Cases, 240, and note."

It must be conceded that this case comes near to deciding the instant case. Indeed, some expressions of the opinion are adverse to claimant. But the facts are entirely different. Moreover, even in that case, it very clearly appears that the legal obligation of the husband to provide for the wife is a factor to be considered in determining the fact of dependency and, also, that a separation of them and the refusal of the husband to support his wife does not make her independent of him unless she acquiesces in that refusal. That this is the real doctrine of that case is supported by an examination of the Monckton case cited evidently with approval. There a widow, who had separated from her husband for twenty-two years and had never made any effort to secure support from him, was held to be not a dependent. But the decision is by all the Law Lords expressly based upon the finding of her acquiescence in his refusal as evidenced by the long lapse of time and by her failure to make any ef forts to secure support from him. There is a very clear recognition and acknowledgment of the wife's right to recover whenever she shows by her course of conduct a reliance upon his earnings, and an intention to require him to maintain her. It is said:

"The wife does not necessarily cease to be dependent on the husband simply because the latter refuses to recognize or perform his obligations and succeeds in throwing the burden of her maintenance for the time being on the wife's parents or friends or on the state. They may fulfill the husband's duty for him but the wife's legal de

pendence is still on him and not on them and his death deprives her of the proper stay and support on which alone she is entitled to rely.'

Thus, from our study of the Morris and Monckton cases and a large number of cases of other jurisdictions with compensation laws of similar import, which need not be cited here, we conclude that when husband and wife are not living together actual dependency must be shown. It will not be presumed. But actual dependency may be shown by the fact (a) that the husband wholly supported the wife or (b) that he contributed to her support such sums as partially supplied her subsistence of (c) that in such instances in which he has failed or refused to support or contribute to her support she has not by word, act or course of conduct acquiesced in his failure or refusal and thereby, as between them, absolved him from his marital obligation. And if, in order to maintain herself and their children, she has earned subsistence or has received subsistence from relatives or from charitable sources the receipt of such subsistence will not be held an acquiescence unless it has so long continued and is accompanied by other circumstances (e. g. making no effort to prosecute for support) which in their combined effect are equivalent to a complete abandonment of her right to the enforcement of the legal obligation of the husband.

Unless this is the true rule the Compensation Law, designed to abolish the rigors and prevent the frequent injustice perpetrated by the common law, may itself become the means whereby great injustice may be done. If the rule contended for by appellee is correct, then, whenever a husband deserts his wife, requiring her either to earn her own subsistence or become the object of charitable ministrations she can recover nothing. Then, if the husband leaves the common domicile against the protest of his wife and departs for parts unknown, she can recover no compensation, no matter how diligently she seeks to find him in order that she may enforce her right to support and no matter how long or short be the period of his absence. The mere fact that he is absent and contributes nothing would, according to the contention, debar her, notwithstanding that she did not consent to the separation or acquiesce in his efforts to escape his marital