Sloop v. Williams Exxon Service , 24 N.C. App. 129 ( 1974 )

210 S.E.2d 111 (1974) 24 N.C. App. 129

James D. SLOOP, Jr., Son, et al., Employee,
v.
WILLIAMS EXXON SERVICE, Employer, and Aetna Casualty & Surety Co., Carrier.

No. 7426IC842.

Court of Appeals of North Carolina.

December 4, 1974.

Welling & Miller by George J. Miller, Charlotte, for plaintiffs-appellees.

Joseph B. Roberts, III, and Geoffrey A. Planer, Mount Holly, for plaintiff-appellant Edna R. Sloop.

MARTIN, Judge.

Appellant Edna Sloop presents a single question for our consideration which can be stated as follows: "Did the Full Commission err in concluding as a matter of law that a husband and wife are not 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?"

Counsel for appellant concedes that the Full Commission merely followed this Court's determination in Bass v. Mooresville Mills, 11 N.C.App. 631, 182 S.E.2d 246 (1971) where an identical question was posed. However, counsel strongly urges this Court to rethink the question and depart from Bass.

G.S. § 97-39 provides in part that a "widow" shall be conclusively presumed to be wholly dependent for support upon the deceased employee. "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." G.S. § 97-2(14). "[T]here is authority in other jurisdictions to the effect that ``justifiable cause,' 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. [Citations]." Bass, supra, at 633, 182 S.E.2d at 248. The Court in Bass considered such authority to be sound and stated at 633-634, 182 S.E.2d at 248, "[T]here 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."

In reaffirming Bass, we also affirm the opinion and award of the Full Commission.

Affirmed

BROCK, C. J., and HEDRICK, J., concur.