{ "id": 8556348, "name": "MRS. SUE W. BASS, Widow, ELIZABETH I. NANCE, Mother, HORACE G. BASS, Father, CARL LEE BASS, Deceased Employee, Plaintiffs v. MOORESVILLE MILLS, Employer, LIBERTY MUTUAL INSURANCE CO., Carrier, Defendants", "name_abbreviation": "Bass v. Mooresville Mills", "decision_date": "1971-07-14", "docket_number": "No. 7122IC234", "first_page": "631", "last_page": "636", "citations": [ { "type": "official", "cite": "11 N.C. App. 631" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "3 N.W. 2d 371", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 0 }, { "cite": "240 Wis. 559", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8681370 ], "opinion_index": 0, "case_paths": [ "/wis/240/0559-01" ] }, { "cite": "10 N.E. 2d 423", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ind. App. 152", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 1562853 ], "opinion_index": 0, "case_paths": [ "/ind-app/104/0152-01" ] }, { "cite": "89 S.E. 2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618335 ], "opinion_index": 0, "case_paths": [ "/nc/242/0533-01" ] }, { "cite": "133 S.E. 2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575774 ], "opinion_index": 0, "case_paths": [ "/nc/260/0628-01" ] }, { "cite": "151 S.E. 2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564446 ], "opinion_index": 0, "case_paths": [ "/nc/268/0630-01" ] }, { "cite": "128 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "258 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559699 ], "opinion_index": 0, "case_paths": [ "/nc/258/0126-01" ] }, { "cite": "144 S.E. 2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575816 ], "opinion_index": 0, "case_paths": [ "/nc/265/0488-01" ] }, { "cite": "127 S.E. 2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "257 N.C. 705", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570522 ], "opinion_index": 0, "case_paths": [ "/nc/257/0705-01" ] }, { "cite": "135 S.E. 2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574968 ], "opinion_index": 0, "case_paths": [ "/nc/261/0612-01" ] }, { "cite": "162 S.E. 223", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "202 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625164 ], "opinion_index": 0, "case_paths": [ "/nc/202/0176-01" ] }, { "cite": "252 N.W. 78", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "190 Minn. 426", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 1760796 ], "opinion_index": 0, "case_paths": [ "/minn/190/0426-01" ] }, { "cite": "111 N.E. 359", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "222 Mass. 563", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 40225 ], "opinion_index": 0, "case_paths": [ "/mass/222/0563-01" ] }, { "cite": "115 So. 582", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 1256250, 1256180 ], "opinion_index": 0, "case_paths": [ "/la/165/0335-01", "/la/165/0333-01" ] }, { "cite": "165 La. 336", "category": "reporters:state", "reporter": "La.", "case_ids": [ 1256250 ], "opinion_index": 0, "case_paths": [ "/la/165/0335-01" ] }, { "cite": "135 F. 2d 258", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3665076 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/f2d/135/0258-01" ] } ], "analysis": { "cardinality": 567, "char_count": 12086, "ocr_confidence": 0.527, "pagerank": { "raw": 4.292402043705047e-07, "percentile": 0.9164437772240775 }, "sha256": "da643f0d1f798ee6c422a9b48cd9641259fdcf3d3140bd024affad55bb03846c", "simhash": "1:3f21867bdcaeae87", "word_count": 2039 }, "last_updated": "2023-07-14T15:10:46.806740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Britt concur." ], "parties": [ "MRS. SUE W. BASS, Widow, ELIZABETH I. NANCE, Mother, HORACE G. BASS, Father, CARL LEE BASS, Deceased Employee, Plaintiffs v. MOORESVILLE MILLS, Employer, LIBERTY MUTUAL INSURANCE CO., Carrier, Defendants" ], "opinions": [ { "text": "GRAHAM, Judge.\nThe decedent\u2019s mother, as the sole \u201cnext of kin,\u201d is entitled to the benefits payable under the Workmen\u2019s Compensation Act if her son left no dependents within the meaning of the Act. G.S. 97-40. The wife was not actually dependent for her support upon deceased, but under the Act she is nevertheless conclusively presumed to have been fully dependent if she qualifies as a widow within the meaning of that term as defined in the Act. G.S. 97-39.\nThe term \u201cwidow\u201d\u2019 as defined in G.S. 97-2(14), includes \u201conly the decedent\u2019s 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.\u201d\nThe mother contends that her son and his wife were living separate and apart pursuant to the terms of a mutual agreement of separation in which the wife had waived any right for maintenance and support. This, she argues, does not constitute living apart for \u201cjustifiable cause\u201d within the meaning of G.S. 97-2(14). It was admitted, and the Commission found, that the parties executed such an agreement on 15 July 1969. The Commission made no finding that the agreement was thereafter rescinded, modified or voided for any reason. Thus two questions are raised: (1) Are a husband and wife living separate and apart for justifiable cause, within the meaning of G.S. 97-2(14), if they are living separate and apart as a result of a mutual agreement evidenced by a legally executed separation agreement? (2) Can the wife go behind a legally executed separation agreement in an attempt to show that the separation, though mutually agreed upon, was caused by the misconduct of the husband? We answer both questions in the negative.\nNeither question appears to have been previously dealt with by any court decision in this State. As to the first question, there is authority in other jurisdictions to the effect that \u201cjustifiable cause,\u201d as that term is employed in statutory provisions similar to our G.S. 97-2(14), may not be interpreted as applicable to separations by mutual consent. Weeks v. Behrend, 135 F. 2d 258 (D.C. Cir. 1943) ; Milton v. Long-Bell Lumber Co., 165 La. 336, 115 So. 582; Newman\u2019s Case, 222 Mass. 563, 111 N.E. 359; Olson v. Dahlin Jones Electric Co., 190 Minn. 426, 252 N.W. 78; 99 C.J.S., Workmen\u2019s Compensation, \u00a7 140(3) (c), pp. 474, 475, 476, and cases there cited.\nWe think the authorities cited above are sound. The beneficial intent of the Workmen\u2019s Compensation Act is to grant certain and speedy relief to employees, or, in the case of death, to their dependents. Cabe v. Parker-Graham-Sexton, Inc., 202 N.C. 176, 162 S.E. 223. The legislature, in its wisdom, has made it difficult for widows, widowers and children to be precluded from benefits under the Act by providing in G.S. 97-39 that they shall be conclusively presumed to be dependents. This provision is sound public policy. By the definition of \u201cWidow\u201d as contained in G.S. 97-2(14), however, the legislature has also made it clear that only widows who come within that definition are entitled to this presumption. This is also sound public policy because certainly there is no reason why a separated wife who has surrendered all right to look to the husband for support while he is living, should upon his death, receive benefits that are intended to replace in part the support which the husband was providing, or should have been providing.\nAs to the second question, we see no reason why the answer should not be governed by the following well established rule which is set forth in Jones v. Jones, 261 N.C. 612, 135 S.E. 2d 554:\n\u201cWhen a husband and wife execute a valid deed of separation and thereafter live apart, such separation exists by mutual consent from the date of the execution of the instrument. Richardson v. Richardson, 257 N.C. 705, 127 S.E. 2d 525. As long as the deed stands unimpeached, neither party can attack the legality of the separation on account of the misconduct of the other prior to its execution.\u201d\nIn accord: Edmisten v. Edmisten, 265 N.C. 488, 144 S.E. 2d 404; Kiger v. Kiger, 258 N.C. 126, 128 S.E. 2d 235.\nIf the separation agreement, entered 15 July 1969, was in full force and effect at the time of the employee\u2019s death, the employee and his wife were, as a matter of law, living separate and apart by mutual consent, and evidence of the husband\u2019s prior conduct toward the wife\u2019s child by a former marriage would be incompetent and should not be considered.\nFor the reasons set forth, the opinion and award of the Commission cannot be sustained. However, there was evidence before the Commission which if found to be true would entitle the wife to the benefits claimed. The case must therefore be remanded for consideration of this evidence and a determination of the crucial issues which it raises.\nThe wife testified that she and her husband had resumed conjugal relations shortly before his death. A separation agreement is rescinded, at least as to the future, by a resumption of conjugal relations'. Tilley v. Tilley, 268 N.C. 630, 151 S.E. 2d 592; Hutchins v. Hutchins, 260 N.C. 628, 133 S.E. 2d 459; Turner v. Turner, 242 N.C. 533, 89 S.E. 2d 245. The wife also testified that she and her husband were living apart only until a female companion of the wife, who had been living in the home with the wife during the separation, could make arrangements to move so that the husband could move back into the home. There was evidence tending to show that the companion had made arrangements to move on the weekend following the decedent\u2019s death and that the decedent, had he lived, would have returned to the home at that time.\nIt is our opinion that the wife\u2019s evidence, if found to be true, would support a conclusion that the parties were living apart for justifiable cause. While justifiable cause is usually equated to some form of marital misconduct, it would also seem to be applicable where the separation is not intended by the parties to be permanent, the temporary living apart being merely for reasons of convenience. In some cases a separation of this type is said not to preclude a finding that the wife was living with the husband \u201cat the time of his death\u201d within the terms of the statute, and hence not to preclude the conclusive presumption that she was fully .dependent on her husband for support. Wisconsin Bridge & Iron Co. v. Krueger, 104 Ind. App. 152, 10 N.E. 2d 423; Samp. v. Industrial Comm., 240 Wis. 559, 3 N.W. 2d 371. \u201cIf the living apart of the husband and wife is merely for the mutual convenience or the joint advantage of the parties and the obligation of the husband to support her is recognized, the right of the wife to compensation exists as though they were living together.\u201d 99 C.J.S., Workmen\u2019s Compensation, \u00a7 140(3), pp. 471, 472.\nIt is clear from the wife\u2019s evidence that her theory at the hearing was that the separation agreement had been rescinded and that the fact she and her husband had not resumed cohabitating under the same roof at the time of his death did not constitute a \u201cliving separate and apart\u201d within the meaning of G.S. 97-2(14); or, if it did constitute living \u201cseparate and apart,\u201d it was for justifiable cause arising from the fact the husband could not move back into the home until the wife\u2019s female companion moved out.\nEvidence about the husband\u2019s mistreatment of the child was injected into the hearing in response to questions propounded to the wife by the Deputy Commissioner as to why the separation occurred. While this evidence might have some bearing on the question of why the parties originally separated, it has nothing to do with the essential question of why they were living separate and apart at the time of the husband\u2019s death.. Furthermore, this evidence is in conflict with all of the evidence-directed toward this crucial question. The wife\u2019s evidence was. that she and her husband were living separate and apart only-because the companion had not moved from the home. The mother\u2019s evidence was that they were living separate and apart under the terms of a valid contract of separation.\nThe case is remanded and the Industrial Commission is directed to make new findings of fact, based on the competent evidence in the record and determinative of the questions at issue.\nError and remanded.\nJudges Campbell and Britt concur.", "type": "majority", "author": "GRAHAM, Judge." } ], "attorneys": [ "Hugh M. MeAulay and.J. C. Sedberry for plaintiff appellee Mrs. Sue Wright Bass.", "Collier, Harris & Homesley by Walter H. Jones, Jr., for petitioner appellant." ], "corrections": "", "head_matter": "MRS. SUE W. BASS, Widow, ELIZABETH I. NANCE, Mother, HORACE G. BASS, Father, CARL LEE BASS, Deceased Employee, Plaintiffs v. MOORESVILLE MILLS, Employer, LIBERTY MUTUAL INSURANCE CO., Carrier, Defendants\nNo. 7122IC234\n(Filed 14 July 1971)\n1. Master and Servant \u00a7 79\u2014 workmen\u2019s compensation death benefits \u2014 separation agreement \u2014 justifiable cause\nA husband and wife are not living separate and apart for \u201cjustifiable cause,\u201d within the meaning of G.S. 97-2(14), if they are living separate and apart as a result of a mutual agreement evidenced by a legally executed separation agreement.\n2. Master and Servant \u00a7 79\u2014 workmen\u2019s compensation death benefits \u25a0\u2014 separation agreement \u2014 misconduct of husband-employee\nIn a proceeding to determine the recipient of workmen\u2019s compensation death benefits, the deceased employee\u2019s wife cannot go behind a legally executed separation agreement in an attempt to show that her separation from the employee-husband at the time of his death was caused by misconduct of the husband.\n3. Husband and Wife \u00a7 12\u2014 rescission of separation agreement \u2014 resumption of conjugal relations\nA separation agreement is rescinded, at least as to the future, by a resumption of conjugal relations.\n4. Master and Servant \u00a7 79\u2014 workmen\u2019s compensation death benefits\u25a0\u2014 separation for justifiable cause\nIn this proceeding to determine the recipient of workmen\u2019s compensation death benefits, the wife\u2019s evidence was sufficient to support a conclusion that she and the employee-husband were living separate and apart for justifiable cause, where it tended to show that they had resumed conjugal relations shortly before his death, that they were living apart only until a female companion of the wife could make arrangements to move so that the husband could move back into the home, and that the companion had made arrangements to move on the weekend following the husband\u2019s death and that the husband, had he lived, would have returned to the home at that time.\n5. Master and Servant \u00a7 79\u2014 workmen\u2019s compensation death benefits \u2014 separation for justifiable cause\nWhile \u201cjustifiable cause\u201d is usually equated to some form of marital misconduct, it is also applicable where the separation is not intended by the parties to be permanent, the temporary living apart being merely for reasons of convenience.\nAppeal by Elizabeth I. Nance from North Carolina Industrial Commission, opinion and award of 13 November 1970.\nCarl Lee Bass died 26 November 1969 as a result of an accident arising out of and in the course of his employment. Mr. Dandelake, Deputy Commissioner, held a hearing for the sole purpose of determining whether the decedent\u2019s widow, Sue W. Bass, or his mother, Elizabeth I. Nance, was entitled to the benefits1 payable under the provisions of the Workmen\u2019s Compensation Act. In an order filed 30 June 1970, Mr. Dandelake found, among other things: (1) Decedent and his wife were living separate and apart at the time of his death due to the deceased beating his wife\u2019s child by a former marriage. (2) They had been separated since 15 July 1969, after filing a separation agreement. (3) The widow of decedent was living separate and apart from deceased for justifiable cause. (4) No one, other than decedent\u2019s wife, was either wholly or partially dependent upon him for support. Based upon these findings, benefits were ordered paid to the wife.\nThe mother, Mrs. Nance, appealed to the Full Commission. The Full Commission adopted as its own the findings of fact and conclusions made by Mr. Dandelake and affirmed the award. The mother appealed to this Court.\nHugh M. MeAulay and.J. C. Sedberry for plaintiff appellee Mrs. Sue Wright Bass.\nCollier, Harris & Homesley by Walter H. Jones, Jr., for petitioner appellant." }, "file_name": "0631-01", "first_page_order": 655, "last_page_order": 660 }