Cal.-Garcia V. State Industrial Acc. Commn., 171 Cal. 57, 151 P 741. Mich. Roberts V. Whaley, 158 NW 209; Miller v. Riverside Storage, etc., Co., 155 NW 462. 25 ticular relation to an employee, such presumption will not prevent persons in such relation from being dependents of others.28 Time of determination. The question of dependency must be determined on evidence of the facts as they existed at the time of the injury.29 "Actual dependents," as employed in a statute, means dependents in fact,30 and includes partial de the question of dependency is one of fact,24 the statutes sometimes expressly so providing.2 The right of dependents to compensation is distinct from that of the employee.26 Unless the statute provides to the contrary, both total and partial dependents may be at the same time entitled to compensation.27 Notwithstanding a statute provides a presumption of total dependency in case of persons occupying a parAcc. Commn., 171 Cal. 57, 151 P 741. | to contribute anything at all for long | dependency are to be determined as 24. U. S.-In re Branch, Op. Sol. periods; and yet the claimant may of the date of the accident to the Dept. Labor 576; In re Rock, Op. Sol. have been in a true sense almost employee, and their right to any Dept. Labor 573. wholly dependent upon the deceased. death benefit becomes fixed as of While the condition of dependence such time, irrespective of any subimplies a person aiding, as well as a sequent change of conditions." Miller person aided, it is a condition which v. Riverside Storage, etc., Co., supra. primarily concerns the person aided. Dependent, as an adjective is defined by the Standard Dictionary as 'needing support or aid from outside sources; poor, weak; as children and invalids are dependent,' as a noun, the word is defined, 'one who looks to another for support, help, or favor." In re Branch, Op. Sol. Dept. Labor 576, 577. (2) The mere fact that the parents have received contributions from a son will not show dependency. In re Rees, Op. Sol. Dept. Labor 599. (3) In the following cases it was held that dependency of the parent was shown: In re Encinas, Op. Sol. Dept. Labor 601; In re Harris, Op. Sol. Dept. Labor 598; In re Munn, Op. Sol. Dept. Labor 597; In re Scott, Op. Sol. Dept. Labor 595; In re Belgrave, Op. Sol. Dept. Labor 580. (4) While in the following cases dependency was held not established: In re Jones, Op. Sol. Dept. Labor 602; In re Duffy, Op. Sol. Dept. Labor 594; In re Mason, Op. Sol. Dept. Labor 589. N. J.-Conners v. Public Service Electric Co., (Sup.) 97 A 792; Havey v. Erie R. Co., 88 N. J. L. 684, 96 A 995 [rev 87 N. J.. L. 444, 95 A 124]; Miller v. Public Service R. Co., 84 N. J. L. 174, 85 A 1030. N. Y.-Walz V. Holbrook, etc., V. Oh.-State Eng.-Lloyd V. Powell-Duffrun Steam Coal Co., [1914] A. C. 733; Pott v. Niddrie, etc., Coal Co., [1913] A. C. 531; Main Colliery Co. V. Davies, [1900] A. C. 358, 2 WCC 108; Ford v. Oakdale Colliery Co., 8 BWCC 127; Polled v. Great Northern R. Co., 5 BWCC 115, 620; Tamworth Colliery Co. v. Hall, 4 BWCC 313; Bowhill Coal Co. V. Neish, 2 BWCC 253; Marsh v. Boden, 7 WCC 110. "Whether one is or is not dependent upon another for support is, of course, a fact." Miller v. Riverside Storage, etc., Co., (Mich.) 155 NW 462. "There has been a good deal of divergence in judicial opinion as to what dependency means. There has been a disposition to draw highly refined distinctions, and the decisions arrived at and the reasons for them have not been always consistent. I think that this tendency and its consequences will be lessened if it is borne firmly in mind that the question is always primarily one of fact." Lord Haldane, L. C. in Young v. Niddrie, etc., Coal Co., 6 BWCC 774, 780 [allowing app 49 Sc. L. Rep. 518, 5 BWCC 552]. [a] Evidence held to show dependency.-(1) Of sister on sister. Buckley's Case, 218 Mass. 354, 105 NE 979, AnnCas1916B 474. (2) Mother and sister on employee. Caliéndo's Case, 219 Mass. 498, 107 NE 370. (3) Daughter on father. Carter's Case, 221 Mass. 105, 108 NE 911. (4) Sister on brother. Kenney's Case, 222 Mass. 401, 111 NE 47 (partial); Miller V. Riverside Storage, etc., Co., (Mich.) 155 NW 462 (where sister was capable of earning ten or twelve dollars per week); Walz v. Holbrook, etc., Corp., 170 App. Div. 6, 155 NYS 703; Jackson v. State Industrial Commn., (Wis.) 159 NW 561. (5) Mother on son. Stevenson v. Illinois Watch Case Co., 186 Ill. A. 418. (6) Father on son. Legget v. Burke, 39 Sc. L. Rep. 448. (7) Wife on husband. Reg. v. Clarke, [1906] 2 Ir. 135; Sneddon v. Addie, 41 Sc. L. Rep. 826. (8) Grandchild on grandfather. Cooper V. Fife Coal Co., [1907] S. C. 564. 25. Hotel Bond Co.'s App., 89 26. Jobson v. Cory, 4 BWCC 284; Waiver by employee see supra § 47. "The respondent also claims that because section 10 of the act provides that a husband shall be conclusively presumed to be totally dependent upon a wife with whom he lives at the time of her injury, and since such dependency could not be created by the injury, there is established by the act a conclusive presumption of mutual and total dependency in every case where husband and wife live together. From this it is argued that the claimant could not have been totally dependent upon his minor son also. The answer is that the dependency of a husband upon a wife is based upon a presumption which may not be true in fact and which does not arise until the wife is injured. and that the act further provides that: 'In all other cases questions of dependency, total or partial, shall be determined in accordance with the fact, as the fact may be at the time of the injury'." Mahoney v. GambleDesmond Co., (Conn.) 96 A 1025, 1026. Kenney's Case, 222 Mass. 401, 111 NE 47; In re Bentley, 217 Mass. 79, 104 NE 432; Miller v. Riverside Storage, etc., Co., (Mich.) 155 NW 462; Pinel v. Rapid R. System, 184 Mich. 169, 150 NW 897; State v. Ramsey County Dist. Ct., (Minn.) 158 NW 250; Dazy v. Apponaug Co., 36 R. I. 81, 89 A 160. 29. [b] Under the federal act of 1908 (1) "the word 'dependent' should be interpreted broadly and not in a narrow or restricted sense. But with whatever liberality the term may be applied, no person can be deemed a 'dependent,' within the meaning of the compensation act, who did not in fact depend in some measure for the means of living upon the deceased. The deceased may have contributed very little to the support of the claimant; he may have been unable, "Questions as to who constitute through the force of circumstances, dependents and the extent of their [a] Illustration.-A mother, living apart from her son at the time he was killed as the result of an accident in the course of his employment, and on whom she was not dependent, except in so far as he might be compelled to contribute to her support, as provided by Comp. L. (1897) § 4487 et seq, was not "dependent" on him, within the workmen's compensation act, no order of court having been entered at the time of decedent's death requiring him to contribute to claimant's support. Pinel v. Rapid R. System, 184 Mich. 169, 150 NW 897. 30. Havey v. Erie R. Co., 87 N. J. L. 444, 446, 95 A 124 [rev on other grounds 88 N. J. L. 684, 96 A 995]; Muzik v. Erie R. Co., 85 N. J. L. 131, 89 A 248; Miller v. Public Service R. Co., 84 N. J. L. 174, 85 A 1030. [a] Mother.-Under the New Jersey act of 1911 (P. L. 134), compensation might be awarded to a mother who was an "actual dependent" on a deceased son, although the son left no widow. Blanz v. Erie R. Co., 84 N. J. L. 35, 85 A 1030 (where the court said: "It is true, as counsel urge, that no specific amount is fixed by way of compensation to the mother where the decedent leaves no widow. From this omission they argue that no compensation can be awarded in this case. This argument is based upon a narrow reading of the section, and takes into account only the words 'if widow and father or mother, fifty per centum of wages.' If we look at the section more broadly and as a whole, it appears that it provides that, 'in case of death compensation shall be computed, but not distributed on the following basis: (1) Actual dependents;' then follows the schedule fixing specific in percentages the specified however, clearly was to award comcases. The object of the section, pensation to actual dependents. contains language apt for that purpose and it contains no language which expressly excludes the mother where there is no widow, provided, of course, that she is an actual dependent. It The particular schedule and the percentages specified are as the statute says, intended as a basis for the computation. The right to compensation of actual dependents is fixed by the earlier words of the statute. If the schedule affords no basis for the computation, the right to compensation may fail, but that is not the present case. A basis of computation in the case of a mother alone is found in the fact that twenty-five per cent. of the wages is to be awarded where there is a widow alone and fifty per cent. where there is a widow and father or mother. A comparison of these two clauses leads almost irresistibly to the conclusion that the intent of the legislature was to allow a compensation of twenty-five per cent. where there was a mother alone or a father alone. Such a construction is in harmony with the general scope of the section, since it provides for a father or mother and does not leave them without provision in a remedial statute where grandparents and brothers pendency.31 But to come within the terms of such an act the individuals named therein must be actually dependent, not on a common family fund, but on deceased,32 although this ruling does not mean that minor sisters or brothers cannot be classed as dependents of a deceased adult brother merely because they have a father who is under obligation to support them.33 Legal right to support. A mere legal right to be supported by the employee is not conclusive as to or sisters are specifically provided for. It would be absurd to construe the act, which by its very language secures compensation to actual dependants, in such a way as to give that compensation to more remote relatives and not to nearer relatives. We can think of no reason that would justify such an exclusion. That it was not intended is indicated by the fact that express provision is made for the father or mother where there is a widow. The legislature cannot have meant to provide compensation where the decedent was under the double obligation to wife and parent and to deny it when he was only under the single obligation to father or mother. We realize the danger of attempting to read into an act of the legislature words that are not there. We have not done since we base the right to compensation upon the words 'actual dependents.' We may upon legal principles read into the basis of computation words that are essential to effectuate the main_intent"). 31. Jackson V. Erie R. Co., N. J. L. 550, 91 A 1035. SO 86 32. Havey V. Erie R. Co., 88 N. J. L. 684, 96 A 995 [rev 87 N. J. L. 444, 95 A 124]. [a] Illustration.-Brothers and sisters of deceased minor employee are not dependent on him, in fact, merely because their father, legally entitled to his wages, was helped by him to support them. Havey v. Erie R. Co., 88 N. J. L. 684, 96 A 995 [rev 87 N. J. L. 444, 95 A 124]. 33. Conners V. Public Service Electric Co., (N. J.) 97 A 792. 36 35 34 37 39 the existence of dependency, as where it has been practically abandoned, but it is a fact to be considered, although the obligation to support has been evaded by the employee. Conversely, a person may be wholly dependent on one, although there is a legal right to demand support from others.38 Relationship to employee. A person who claims as a dependent must also come within any class or relation which is fixed by the statute.3 For example a statute limiting dependents to members of 38. Rintoul v. Dalmeny Oil Co., 1 Moss Bay Iron, etc., Co., [1909] 2 BWCC 340. K. B. 521, 2 BWCC 282. 39. In re Murphy, (Mass.) 113 [f] Parent of unmarried employee. NE 283; Kelley's Case, 222 Mass.-The intent of compensation act 538, 111 NE 395; State v. Ramsey § 30 subd 4 "is to limit all of the County Dist. Ct., (Minn.) 158 NW compensation to sixty-six and two798; Newark Pav. Co. v. Klotz, 85 thirds per cent of the wages of the N. J. L. 432, 91 A 91 [aff 92 A 1086 deceased, and to give compensation mem]; Friscia v. Drake Bros. Co., to the surviving wife, children, par167 App. Div. 496, 153 NYS 392; Arm- ents or grandparents, who are destrong V. Industrial Commn., 161 pendent, only if such compensation Wis. 530, 154 NW 844. can be brought within the maximum percentage allowed. Each parent or grandparent is allowed fifteen per cent of such wages during his dependency if the allowance to the widow and children does not equal sixty-six and two-thirds per cent of the wages. This condition exists where there is no widow or children, and the Commission was justified in awarding compensation to the parents, even though the deceased was unmarried at the time of his death." Friscia v. Drake Bros. Co., 167 App. Div. 496, 497, 153 NYS 392. [a] Family.-"The deceased employé lived with his mother who for some years had been wholly incapacitated by the fatal disease of which she died. The other members of the family were a daughter who carried on the household, doing the household work with her own hands; a brother, and an adopted daughter who was a minor. The brother and adopted daughter were sickly, and contributed to the household expenses enough but no more than enough to pay for what they received from it. The deceased had another brother who did not live at home and made no contribution to the maintenance of the family. The board found that the mother was wholly dependent upon the deceased, and that finding was warranted by the evidence. The board found that the family was the family of the mother, not of the son. That finding also was warranted by the evidence. It follows that the only person entitled to recover was his mother, she being the deceased's only next of kin." In re Murphy, (Mass.) 113 NE 283, 284. 435. [b] Members of family.-An adult son married and living with his wife [a] Although deceased's father and children, separate from his and sister worked and contributed mother, is not a member of such earnings to the general family sup-mother's family within the meaning port, where deceased's earnings were of the workmen's compensation act also used therefor, the amount ex- (L. [1913] c 216) § 4. Taylor v. ceeding the cost of his board, lodg- Sulzberger, etc., Co., (Kan.) 157 P ing, and other expenses, it was a legitimate inference that the family received substantial support from deceased, so as to justify an award of compensation. Conners v. Public Service Electric Co., (N. J.) 97 A 792. 34. Rees v. Penrikyber Nav. Colliery Co., [1903] 1 K. B. 259, 5 WCC 117; Young v. Niddrie, etc., Coal Co., 6 BWCC 774 [allowing app 5 BWCC 552, 49 Sc. L. Rep. 518]; Devlin v. Pelaw Main Collieries, 5 BWCC 349; Polled v. Great Northern R. Co., 5 BWCC 115, 620; Briggs v. Mitchell, 4 BWCC 400, 48 Sc. L. Rep. 606; New Monckton Collieries v. Keeling, 4 BWCC 332, 27 T. L. R. 551 [allowing app [1911] 1 K. B. 250, 4 BWCC 49]; Lindsay v. McGlashan, 1 BWCC 85. 35. Turners v. Whitefield, 41 Sc. L. Rep. 631; New Monckton Collieries v. Keeling, 4 BWCC 332. 27 T. L. R. 551 [allowing app [1911] 1 K. B. 250, 4 BWCC 49]. Husband and wife living apart see infra § 50. 36. Young v. Niddrie. etc., Coal Co., 6 BWCC 774 [allowing app 5 BWCC 552, 49 Sc. L. Rep. 518]; Dobbies v. Egypt, etc., SS. Co., 6 BWCC 348. Contra Lee v. Steamship Bessie, [1912] 1 K. B. 83, 5 BWCC 55. 37. Williams v. Ocean Coal Co., [1907] 2 K. B. 422, 9 WCC 44; Coulthard v. Consett Iron Co., [1905] 2 K. B. 869, 8 WCC 87; Young v. Niddrie, etc., Coal Co., 6 BWCC 774 [allowing app 5 BWCC 552, 49 Sc. L. Rep. 518]; Medler V. Medler, 1 BWCC 332. [c] Putative wife not "member of family."-Under St. (1913) § 2394-10 subs 4, providing that no person shall be considered a dependent unless a member of the family of the deceased employee or his widow, descendants, etc., plaintiff who had gone through a marriage ceremony with deceased and who was living with him at the time of his death believing that she was lawfully married, but who was not his wife, he being incompetent to contract a marriage because he had a wife or former wife, from whom he had been divorced for one year, was not "a member of the family of the deceased" so as to be entitled to compensation for his death; and it was immaterial that she had been dependent on him for her support. Armstrong V. Industrial Commn., 161 Wis. 530, 154 NW 844. See also Fife Coal Co. v. Wallace, 2 BWCC 264 (where facts were held not to establish marriage). [d] Parent.-(1) The word "parent" does not include a foster parent where there has been no legal adoption. In re Perkins, Op. Sol. Dept. Labor 579. (2) But a foster parent by legal adoption may be a dependent parent. In re Huff, Op. Sol. Dept. Labor 567. [e] Stepparent.—(1) The word "parent" does not include a stepfather or stepmother. In re McMurray, Op. Sol. Dept. Labor 571. (2) Husband of mother of illegitimate boy is not stepfather. McLean V. [g] Dependent stepchildren who have been supported by a deceased workman are included within the word "children" in the act of 1911 (P. L. [1911] p 134). Newark Pav. Co. v. Klotz, 85 N. J. L. 432, 91 A 91 [aff 92 A 1086 mem]. [h] Child.-(1) Widowed daughter thirty years of age may be partial dependent of father within Minn. L. (1913) c 467 § 14, as amended by L. (1915) c 299. State v. Ramsey County Dist. Ct.. (Minn.) 158 NW 798. (2) But in Kansas it was held that it was not the purpose or policy of the statute to continue compensation to a dependent minor after reaching the age of eighteen years unless physically and mentally incapable of earning wages, or to award compensation to an adult married son, the head of a family living separate from that of his mother who from her wages as an employee made small contributions toward his support, he being physically and mentally capable to earn, and actually earning, fair wages. Taylor v. Sulzberger, etc., Co., (Kan.) 157 P 435. [i] Posthumous child.-(1) A posthumous child may be a dependent (Reg. V. Clarke, [1906] 2 Ir. 135; Williams v. Ocean Coal Co., 9 WCC 44, 97 L. T. Rep. N. S. 150; Day v. Markham, 6 WCC 115), (2) even though illegitimate (Lloyd v. Powell Duffryn Steam Coal Co., [1914] A. C. 733 [rev 7 BWCC 330 (rev [1913] 2 K. B. 130, 6 BWCC 142)]; Schofield v. Orrell Colliery Co., [1909] 1 K. B. 178, 2 BWCC 301 [aff [1909] A. C. 433. 2 BWCC 294]). [j] Illegitimate children.-Where illegitimate children are supported and cared for by the employee up to the time of his death, they may take as dependents. Roberts V. Whaley, (Mich.) 158 NW 209. [k] A child adopted by the widow after the employee's death is not within a definition of "child" or "children" as including posthumous children and all other children entitled by law to inherit as children of the deceased. State v. Ramsey County Dist. Ct., (Minn.) 158 NW 250 (so holding, although the child had been a member of the employee's family prior to his death). [1] An amendatory act clearly intended to bring the children of an employee within the class of dependents where they have been wholly or the employee's family or next of kin has been construed to require the dependent to be in the same degree of kinship as the statutory heir or heirs.*0 Absence of surviving dependent parent. Where the statute prescribes that a child shall be conclusively presumed to be a dependent where there is no surviving dependent parent," a parent in blood is intended and not one standing in loco parentis to the child.42 Minor employee. The fact that the employee is a minor will not prevent a parent from being a dependent.43 44 Voluntary character of support. Voluntary contributions are not necessarily evidence of dependency; nor is the voluntary character of the employee's contributions to a person's support conclusive against such fact.45 Capability of self-support. A person may be a dependent on the employee, although capable of self-support, where instead of supporting herself she devotes her time to the care of the employee.46 partly supported by him, without a limitation contained in a former act as to age or physical or mental capacity, should be given effect, although by so doing certain unamended sections cannot be given full effect. State v. Ramsey County Dist. Ct., (Minn.) 158 NW 798. 40. Kelley's Case, 222 Mass. 538, 111 NE 395. "While dependency determines the right to compensation, it is also necessary that the dependent should be in the same degree of kinship as the statutory heir or heirs." Kelley's Case, 222 Mass. 538, 541, 111 NË 395. are [a] Discussion of construction."It is true that the object of the statute is to provide in place of the wages of the deceased employee the means of sustenance for his widow and other dependents. Cripp's Case, 216 Mass. 586, 589, 104 NE 565, Ann Cas1915B 828. And, if dependents are to be ascertained solely from those nearest in blood; it may happen that, where a father and mother survive who are not dependent, a sister wholly dependent must be denied relief. Or, if the employee leaves no widow but only children who amply provided for by marriage or otherwise are self-supporting, and an indigent mother wholly dependent upon him, the mother is not within the statute. But the words 'next of kin' as used in our laws uniformly refer to those who are nearest in degree by consanguinity. Swasey v. Jaques, 144 Mass. 135, 10 NE 758, 59 AmR 65. It must be assumed that this term as used in the statute was intended by the Legislature to have this well recognized meaning, and we cannot construe 'next of kin' as being the equivalent of dependent next of kindred which would embrace all dependents without regard to the degree.' Kelley's Case, 222 Mass. 538, 511, 111 NE 395. Removal of incapacity. Where partial dependency is due to an incapacity which may be relieved by a surgical operation, it cannot be held that compensation may continue only for such time as reasonably necessary to effect relief, in the absence of an explicit finding of the probable favorable result of the operation and of an unreasonable refusal to submit to such operation." Persons who are public charges. A person who has for some time been an inmate of a public institution supported by the state, and to whose support the employee has not contributed, is not a dependent." Aliens. Nonresident alien dependents are expressly excluded from the beneficiaries entitled to take under some of the acts;49 but a statute will not be given such a restricted meaning merely because its title contains the words "to promote the general welfare of the people of this state.""50 Under the English act an alien nonresident dependent may be entitled to compensation,51 and the same is true un death of such parent, there being no 42. Coakley's Case, 216 Mass. 71, [a] Reason for rule.-"Where there are left a parent and children, who are the issue of the surviving dependent parent and the deceased, the natural instincts as well as the legal obligation combine to assure support to the children in case they need it. But in case of stepchildren there is neither the parental affection nor legal duty. The legislature might well leave the support of children to their parent by blood and hesitate to leave it to any one else when there is no parent by blood." Coakley's Case, 216 Mass. 71, 73, 102 NE 930. AnnCas1915A 867. a 64 [b] Illustration.-The daughter of deceased employee by a former wife is a child who has no surviving dependent parent," even though she was living in his family at the time of his death, since the word "parent" commonly means the lawful father or mother by blood, and not a stepfather or stepmother, or one standing in loco parentis. Coakley's Case, 216 Mass. 71, 102 NE 930, Ann Cas1915A 867. 43. Friscia v. Drake Bros. Co., 167 44. Miller V. Riverside Storage, case gally chargeable with the support of the daughter, the award to them must be deemed to include any benefit to which she might otherwise be entitled, and hence that an award to her was granting double compensation." Walz v. Holbrook, etc., Corp., supra. 46. Kenney's Case, 222 Mass. 401, 111 NE 47; In re Herrick, 217 Mass. 111, 104 NE 432. [a] Rule applied.-(1) To daughter. In re Herrick, 217 Mass. 111, 113, 104 NE 432 (where the court said: "There was some evidence that she had been wholly dependent upon her father. She received practically all of his wages, and she testified that all of her support came from him. The fact that but for her sense of duty, because she thought that her father needed her care, she might have continued to earn enough for her own support, and to be independent of him, cannot be decisive__as matter of law against her claim. The board well might base its conclusions upon the facts as they were and not upon what might have been the case if her sense of filial duty had been weaker"); Moynes v. Dixon, 7 F. (Ct. Sess.) 386. (2) To sister. Kenney's Case, 222 Mass. 401, 111 NE 47. 47. Mahoney v. Gamble-Desmond Co., (Conn.) 96 A 1025. 48. Roberts v. Whaley, (Mich.) 158 NW 209. But see Kelly v. Hopkins, [1908] 2 Ir. 84 (where a workwho died as the result of an accident arising out of, and in the course of, his employment had maintained his wife until her removal as a dangerous lunatic to a lunatic asylum where she was detained by the asylum authorities under confinement, and where she was being maintained by them at the date of her husband's death, and it was held that these circumstances were insufficient to rebut the presumption of dependency, and that there was total dependency of the wife on her husband's earnings). man Between brother and sister."It is probable that in every where a brother or sister of a deceased employé claims relief under the statute the evidence of dependency will necessarily be evidence of contributions made by the deceased, because in such cases the support furnished by either to the other, or the service rendered by either to the other, will be voluntary, But voluntary contributions of money, support, or service by a brother to a sister, or by a sister to a brother, are not necessarily evidence of the dependency of either, or of the extent of dependency, within the purview of the statute." Miller V. Riverside Storage, etc., Co., (Mich.) 155 NW 462, 463. 45. Walz v. Holbrook, etc., Corp., 170 App. Div. 6, 9, 155 NYS 703. 41. See statutory provisions; and "Nor does the statute limit the In re McNicol, 215 Mass. 497, 102 right to an award to those dependNE 697, LRA1916A 306 (holding that, ents who had the legal right to comunder the workmen's compensation pel the deceased to furnish them supact [St. (1911) c 751] pt 2 § 7, pro- port, but it applies as well to cases viding that a child or children under where the person was dependent for the age of eighteen years shall be support upon the voluntary contribuconclusively presumed to be depend- tions of the deceased. There is no ent on the parent with whom he is merit in appellant's contention that or they are living at the time of theby reason of the parents being le a 49. See statutory provisions; and De Biasi v. Normandy Water Co., 228 Fed. 234 (New Jersey); Fierro's Case, 223 Mass. 378, 111 NE 957, 959 (where the court said: "The question whether the death sections of the workmen's compensation act were intended to benefit widows and dependents who live in foreign countries having no domicile within the commonwealth has not been raised, and we do not consider it"). 50. Victor Chemical Works V. State Industrial Bd., 274 Ill. 11, 113 NE 173, 177. 51. Baird v. Birsztan, 8 F. (Ct. Sess.) 438. der the similar provisions of the acts of British Columbia 52 and of Alberta.53 A Representatives of dependent. Where an award has been made to a person wholly dependent, it has been held that it is vested in such person, and that in case of his death the right to the balance, if any, remaining unpaid passes to his representative.54 contrary decision has however been reached under other acts.55 Where defendant is a nonresident alien, the consular representative of his country in the jurisdiction may be authorized to receive the payment for him.56 English decisions. Decisions under the English act as to who are dependents are not controlling in the construction of acts differing in terms,57 but are properly considered where there is no substantial difference between the statutes." 58 52. Krzus V. Crow's Nest Pass Coal Co., [1912] A. C. 590, 6 BWCC 271, 4 DomLR 253, AnnCas1912D 859 and note [rev 16 B. C. 120, 4 BWCC 469 (rev 14 B. C. 385, 3 BWCC 601)]; Varesick v. British Columbia Copper Co., 12 B. C. 286, 1 BWCC 446. 53. See Johansdotter v. Canadian Pac. R. Co., 47 Que. Super. 76 (where an alien beneficiary was permitted to recover in the province of Quebec under the statute of Alberta). 54. State V. State Industrial Commn., 92 Oh. St. 434, 111 NE 299, LRA1916D 944. [a] Unpaid compensation does not abate."The intent apparent and expressed throughout the act that compensation is to be paid only to dependents, was not for the purpose of securing an abatement of unpaid compensation upon the death of a dependent. The purpose is to insure that compensation shall go intact to the injured employee or his dependents without any shrinkage by passing through or into the hands of assigns, agents, attorneys, friends or relatives, it being common knowledge that if a sum of money on its journey from the one from whom to the one to whom it is due passes through the hands of others it is inevitable that it suffer diminution, sometimes almost to the vanishing point." State State Industrial Commn., 92 Oh. St. 434, 454, 111 NE 299, LRA1916D 944. V. [b] Under the English act (1) the right to compensation vests in the dependent at the time of the employee's death and passes to the representative of the dependent. United Collieries v. Simpson, [1909] A. C. 383, 2 BWCC 308 [aff 1 BWCC 289]; Darlington v. Roscoe, [1907] 1 K. B. 219, 9 WCC 1; Darlington v. Roscoe, 8 WCC 4. Contra O'Donovan v. Cameron, [1901] 2 Ir. 633; Harvey V. North-Eastern Mar. Engineering Co., 5 WCC 30. (2) But when a lump sum payment was apportioned between the widow and the children, it will be reapportioned on the death of the widow. Ivey v. Ivey, [1912] 2 K. B. 118, 5 BWCC 279. 60 61 [50] B. Husband and Wife Living Together or Apart. Where husband and wife are living together, either is under the ordinary provisions of the acts conclusively presumed to be dependent on the other,59 and the same is true, under some statutes, where they are living apart for justifiable cause. Where the employee's wife is living apart from him, or, under some of the statutes, living apart from him without there being a justifiable cause shown,62 the question of her dependency is to be determined as one of fact. In some jurisdictions it has been held that husband and wife in order to be regarded as living together must be maintaining a home and living together in the same household or actually cohabiting under conditions which would be regarded as constituting a family relation;63 but there is authority in support of the broader view court said: "The consul of the dual the 57. In re McNicol, 215 Mass. 497, 102 NE 697, LRA1916A 306; State v. Beltrami County Dist. Ct., 131 Minn. 27, 154 NW 509; Havey v. Erie R. Co., 88 N. J. L. 684, 96 A 995 [rev 87 N. J. L. 444, 95 A 124]. 58. Gove's Case, 223 Mass. 187, 111 NE 702. 59. See statutory provisions; and Newman's Case, 222 Mass. 563, 111 NE 359, LRA1916C 1145; Gallagher's Case, 219 Mass. 140, 106 NE 558. an [a] Reason for distinction from English act.-"Workmen's compensation acts are founded upon the theory of compensation to dependents when death ensues. This rests upon the fact of dependency. The English act makes dependency a question of fact in all cases. Potts v. Niddrie, etc., Coal Co., [1913] A. C. 531; Hodgson v. West Stanley Colliery, [1910] A. C. 229. Our act makes an exception by fixing absolute presumption of dependency (without regard to what the fact really is) in favor of a wife and of a husband when there is an actual living together. Each is conclusively presumed to be totally dependent upon the other. It might be extremely difficult to measure the extent of dependency where the wife was earning something beside keepholding the house and performing the ordinary wifely duties. Therefore 55. Mateeny V. Vierling Steel Works, 187 III. A. 448; In re Murphy, (Mass.) 113 NE 283. [a] Reason for rule.-"To that the dependent's right to compensation is a vested right which passes to a legatee by will and in case of intestacy goes to the dependent's next of kin, would be to put upon the insurer a burden not called for by the object which the act was passed to attain. In addition, the compensation awarded the dependent would go in that case to persons altogether outside the class contemplated by the act. So construed the act would or might enrich strangers in place of doing justice to the family and next of kin of an employé killed in the course of and so as an incident to the business in which he was employed." In re Murphy. (Mass.) 113 NE 283, 284. 56. Vujic V. Youngstown Sheet, etc., Co., 220 Fed. 390, 392 (where the our act says that where there is a real living together the fact of dependency shall not be inquired into; it shall be set at rest by a conclusive assumption." In re Nelson, 217 Mass. 467, 469, 105 NE 357. 60. Gallagher's Case, 219 Mass. 140, 106 NE 558. 61. Roberts v. Whaley, (Mich.) 158 NW 209; Finn v. Detroit, etc., R. Co., (Mich.) 155 NW 721; Batista v. West Jersey, etc., R. Co., (N. J.) 88 A 954. [a] When not dependent.-The deserted wife of a deceased employee who at the time of his death was living in illicit relations with another woman, the lawful widow having for more than six years supported herself without contribution from the decedent or knowledge of his whereabouts, is not a dependent. Batista v. West Jersey, etc., R. Co., (N. J.) 88 A 954. 62. Veber v. Massachusetts Bonding, etc., Co., (Mass.) 112 NE 485; Fierro's Case, 223 Mass. 378, 111 NE 957; Newman's Case, 222 Mass. 563, 111 NE 359, LRA1916C 1145. [a] In Massachusetts, prior to the amendment of 1914, the rule stated in the preceding text prevailed. Gallagher's Case, 219 Mass. 140, 106 NE 558; In re Nelson, 217 Mass. 467, 105 NE 357; In re Bentley, 217 Mass. 79, 104 NE 432. [b] Dependency must be total.Evidence in proceedings under the workmen's compensation act that the deceased employee's wife had never resided in the United States but had resided in Italy for the past six years, during which time the deceased had sent her a sum amounting to one hundred sixty-one dollars, there being nothing to show the wife's circumstances or whether she had other means of support, was held insufficient to support the finding of the industrial accident board that such wife was wholly dependent on deceased. Fierro's Case, 223 Mass. 378, 111 NE 957. 63. Newman's Case, 222 Mass. 563, 111 NE 359, LRA1916C 1145; Gallagher's Case, 219 Mass. 140, 106 NE 558; Finn v. Detroit, etc., R. Co., (Mich.) 155 NW 721, 724. "There may be temporary absences and incidental interruptions arising out of changes in the house or town of residence, or out of travel for business or pleasure. But there must be a home and a life in it. The matrimonial abode may be a roof of their own, a hired tenement, a boarding house, a rented room or even a room in the house of a relative or friend, however humble or temporary it may be. But it is the situation arising from the existence of a common home, a place of marital association and mutual comfort, broken up or put in peril of hardship or extinction by the husband's death, which is protected by the conclusive presumption of dependency established beyond the peradventure of dispute by the statute." In re Nelson, 217 Mass. 467, 469, 105 NE 357. "In those cases where absence of the husband, by reason of employment or other common causes regarded as temporary, from an established home in which he resided with his wife or family has been held not to negative the statutory presumption, it is nevertheless recognized that the family relations in intent and fact must otherwise exist unbroken. Even in the extreme case of Northwestern Iron Co. v. State Industrial Commn., 154 Wis. 97, 142 NW 271. LRA1916A 366, AnnCas 1915B 877, cited and relied upon in claimant's brief with which In re Nelson, 217 Mass. 467, 105 NE 357 does not harmonize in all particulars the rule is guarded, and it is made plain that a wife may not be con that a physical living together is not necessary so long as there is no legal separation or an actual separation in the nature of an estrangement.64 The phrase "living apart for justifiable cause" is to be interpreted according to its ordinary and established legal meaning;65 hence, it has been held that a wife is not living apart from her husband for justifiable cause where she is living apart from him by mutual consent or agreement.66 The relationship of husband and wife once established is presumed to continue.67 What constitutes "living together" where the facts are undisputed and no conflicting inferences can be strued as living with an absent husband where there is an actual separation in the nature of an estrangement at the time of his injury and there exists at that time an actual severance or break in the marital relations. In this case it is the wife who had voluntarily absented herself from her home and husband under just the conditions last above recited, and therefore the conclusive presumption of total dependence does not obtain." Finn v. Detroit, etc., R. Co., supra. a [a] Temporary separation.-"There may be many instances where there is a total dependency although there is a temporary separation of husband and wife. There may be physical dissociation and a breaking up of the home with a definite purpose to resume the normal conditions of married life. The act provides for these cases by requiring dependency to be determined in accordance with the truth. But words which signify living together do not aptly describe such a situation. These words are used in antithesis to living apart. They exclude a condition where there is neither a home nor an actual dwelling together, and where the suspension of this relation is something more than a mere temporary incident of a changing family habitation." In re Nelson, 217 Mass. 467, 470, 105 NE 357. [b] Facts held not to show a living together.-Newman's Case, 222 Mass. 563, 111 NE 359, LRA1916C 1145; In re Nelson, 217 Mass. 467, 105 NE 357; Finn v. Detroit, etc., R. Co., (Mich.) 155 NW 721. [c] A mere possibility of reconciliation and resumption of marital relations will not alter the rule stated in the text. Finn v. Detroit, etc., R. Co., (Mich.) 155 NW 721, 723 (where the court said: "In this case the nature and character of claimant's absence from her home and husband are undisputed, and, whatever reason, preference, or pretext she may have had for such course, it is manifest that she intended to and did sever their personal marital relations for an indefinite period with the possibility and the expectation, as she represents, that at some indefinite time in the future, after a reconciliation, they would be resumed. In the most favorable view, as she states the case, the husband and wife were voluntarily living apart because they were not happy together, in different states, each following the pursuits and living the separate life led before marriage, but in friendly correspondence with each other and a possibility that the existing estrangement, whatever it was, might some time be reconciled and they live together again"). 64. Northwestern Iron Co. v. State Industrial Commn., 154 Wis. 97, 101, 142 NW 271, LRA1916A 366 and note, AnnCas1915B 877 and note. "Proof of total dependency is dispensed with under the statute where the husband and wife are living together' at the time of the death of the injured employee. It seems, therefore, quite obvious that the legislature intended by the use of the words to include all cases where there is no legal or actual severance 68 70 drawn from the evidence is a question of law for is 74 of the marital relation, though there may be physical separation of the parties by time and distance. The 'living together' contemplated by the statute, we think, was intended to cover cases where no break in the marriage relation existed, and therefore physical dwelling together not necessary, in order to bring the parties within the words 'living together.' There must be a legal separation or an actual separation in the nature of an estrangement, else there is a living together' within the meaning of the statute. This seems to be the reasonable and practical construction of the law, and the one which we think the legislature intended. If the law should receive the construction that there must be physical dwelling together in order to satisfy the statute, it is plain that the purpose of the law would in many cases be defeated, because in many cases the spouse may be absent from home for long intervals, although there be no break the marriage relation, no estrangement, and no intent to separate or sever the existing relation or change the relations or obligations created by the marriage contract." Northwestern Iron Co. v. State Industrial Commn., supra. in [a] Duration of separation not material.-"There seems to be no solid reason why an absence of a month or a year or less should require a different construction of the words living together' than an absence of three years and three months or more. The question does not turn on time or distance, but upon the nature and character of the absence and the intention of the parties respecting it. Intent is an important element in determining Northwest the nature of absence." ern Iron Co. V. State Industrial Commn., 154 Wis. 97, 102, 142 NW 271, LRA1916A 366, AnnCas1915B 877. 65. Newman's Case, 222 Mass. 563, 566, 111 NE 359, LRA1916C 1145. Living apart for justifiable cause." These words have been interpreted by this court in numerous decisions. They have been construed in divorce proceedings brought by a wife against her husband for desertion, in petitions brought by her for separate support and maintenance, as well as in actions brought against the husband to recover for necessaries furnished to his wife. These words have acquired a peculiar and appropriate meaning in the law. We are therefore bound to construe them in accordance with such meaning. This is the rule of exposition stated in R. L. c. 8, § 4, cl. 3." Newman's Case, supra. [a] Evidence held not to show justifiable cause.-(1) In re Newman, 222 Mass. 563, 111 NE 359, LRA 1916C 1145 (where husband and wife separated by agreement when he was earning eleven dollars a week because his earnings were not sufficient to support his family, but did not resume living together when his earnings had increased to twentyone dollars and sixty cents a week). (2) Where living apart was due to mental and physical deficiencies of the employee and to his inability to secure remunerative employment, and there was evidence that he had paid some doctor's and grocer's bills, had bought clothes for his child, and had given money to his wife amounting to between two hundred and three hundred dollars. Veber V. Massachusetts Bonding, etc., Co., Co., (Mass.) 112 NE 485. 66. Newman's Case. 222 Mass. 563, 111 NE 359, LRA1916C 1145. 67. Northwestern Iron Co. v. State Industrial Commn., 154 Wis. 97, 142 NW 271, LRA1916A 366, AnnCas 1915B 877. 68. Northwestern Iron Co. v. State Industrial Commn., 154 Wis. 97, 142 NW 271, LRA1916A 366, AnnCas 1915B 877. 69. Northwestern Iron Co. v. State Industrial Commn., 154 Wis. 97, 142 NW 271, LRA1916A 366, AnnCas 1915B 877. [a] "The question of intent was an important factor in determining whether the parties were living together. This is ordinarily a question of fact." Northwestern Iron Co. v. State Industrial Commn., 154 Wis. 97, 104, 142 NW 271, LRA1916A 366, AnnCas1915B 877. [b] Evidence held to show a living together.-In re Nelson, 217 Mass. 467, 105 NE 357. 70. Caliéndo's Case, 219 Mass. 498, 107 NE 370; State v. Hennepin County Dist. Ct., 128 Minn. 338, 151 NW 123. 71. Carter's Case, 221 Mass. 105, 108 NE 911. [a] Пlustration.-A daughter eighteen years old who had for three years before her father's death no income except money allowed her by him and earnings for two weeks, and who was too ill to work, and who had saved one hundred dollars from money given her by him, and who, since his death, had used some fifty dollars or sixty dollars thereof, was at his death "wholly dependent" on him for support, within the workmen's compensation act (St. [1911] c 751). Carter's Case, 221 Mass. 105, 108 NE 911. 72. Buckley's Case, 218 Mass. 354, 105 NE 979, AnnCas1916B 474; Walz V. Holbrook, etc., Corp., 170 App. Div. 6, 155 NYS 703. 73. Rhymer v. Hueber Bldg. Co., 171 App. Div. 56, 156 NYS 903; Cunningham v. McGregor, 38 Sc. L. Rep. 574. 74. Kenney's Case, 222 Mass. 401. 111 NE 47; State v. Beltrami County Dist. Ct., 131 Minn. 27, 154 NW 509; Pryee v. Penrikyber Nav. Colliery Co., [1902] 1 K. B. 221, 4 WCC 115. 75. Kenney's Case, 222 Mass. 401, 111 NE 47; Dazy v. Apponaug Co., 36 R. I. 81, 89 A 160. [a] Illustrations.—(1) "While we are of opinion that the facts warrant a finding that the claimant was 'dependent,' we do not think there was warrant for the finding that she was wholly dependent' upon the employee's earnings for support at the time of his injury. Admittedly she had $600 in a bank, and one third interest in unincumbered and productive real estate in Boston that was assessed for $1.300. This separate and independent fund of her own, available for her support, is too substantial to be ignored." Kenney's Case, 222 Mass. 401, 404, 111 NE 47. (2) "It appears by the tes |