average weekly earnings of the deceased employee, but not to exceed $12 nor less than $5 per week shall be payable, all such payments to be made for the period between the date of death and 335 weeks after the date of accident to the employee, or until the intervening termination of dependency, but in no case to exceed the maximum sum of $4,000.

"(3) If there are partly dependent persons, the payments shall be such part of what would be payable for total dependency as the partial dependency existing at the time of the accident to the employee may be proportionate to total dependency, all such payments to be made for the period between the date of death and 335 weeks after the date of the accident to the deceased employee, or until the intervening termination of dependency, but in no case to exceed in the aggregate of compensation on account of such death the maximum sum of $4,000."

Subsections 2 and 3 are the ones with which we are concerned. Simplified, subsection 2 provides that, in case where there are one or more wholly dependent persons, the company shall be liable for 65% of the average weekly earnings of the deceased employee; and subsection 3 provides that, if there be no totally dependent persons, the amount recoverable shall be only such part of what would be payable for total dependency as the partial dependency, existing at the time of the accident to the employee, may be proportionate to total dependency. This section fixes the amount for which the insurer is liable, and does not designate the dependents who are to receive the same, for it will be noted that the section does not say to whom the compensation shall be paid as between dependents, but only that 65% of the average weekly wage of the deceased employee "shall be payable"; that is, the company shall be liable for said amount when fixed by the board.

It has often been held that, where there are two or more wholly dependent persons, the allowance shall be equally distributed between them. Rossi v. Standard Oil Co., 2 Cal. I. A. C. Dec. 307; Moran v. Rodgers & Hagerty, Inc., 180 App. Div. 821, 168 N. Y. Supp. 410; Buhse v. Whitehead & Kales Iron Works, 194 Mich. 413, 160 N. W. 557. So, also, has it been decided that where there are several partially dependent persons, but no totally dependent, each shall share in the fund awarded in the proportion that his partíal dependency bears to total dependency and the distributable fund, but, no matter how large the number of dependents, the total sum of their dependency cannot exceed 65% of the average weekly earnings of the deceased employee. Anderson v. American Straw Board Co., 1 Conn. Comp. Dec. 11 (affirmed by Superior Court); State ex rel. Ernest Fleckenstein Brewing Co. v District Court, Rice County. 134 Minn. 324, 159 N. W. 755; In re Pagnoni, 230 Mass. 9, 118 N. E. 948; Dosker's Compensation Law (1917 Ed.) §§ 164-181.

The act contains a provision (section 4909, Kentucky Statutes) for the payment of the entire award to one dependent for the benefit of all dependents entitled thereto, if the board so directs. This is intended to cover cases where a parent and a child or children are dependents. Generally the board will direct that all payments be made to the parent, for the use and benefit of the parent and the several dependent children in accordance to the dependency of each and their respective claims on the deceased for support. However, it has been held by the New Jersey court that where the deceased employee left a wife and several minor children all totally dependent upon him for support, and one of the dependent children was by a former wife, the whole amount should not be paid to the widow, but it should be divided, and paid, one part to the widow for her use and that of, her own children, and the balance to the guardian of the stepchild, according to the dependency of each; it being made to appear that the best interest of the stepchild would thus be served. Why, then, should not the partially dependent share proportionately wth the totally dependent in the ratio of his dependency to total dependency? We think he should. If this is not allowed, the legislative pur

pose fails in large part. The reason is not far to seek. The legislation out of which this system arose is founded upon the idea that all loss or depreciation of man power, like that of machine or material, must be charged to the industry in which it occurs, as a part of the cost of production, and the loss distributed to and absorbed by the communty as the ultimate consumer of the product of the enterprise. If a machine is worn out or broken, it is properly charged as a part of the cost of production, and those who buy and use the product of the factory, or other plant, distribute and absorb the commercial shock. Why should not the same process be pursued with respect to the depreciation or destruction of the man power employed in the same plant? Why make the unfortunate man bear all the burden of the accident, when he is a victim of circumstances and conditions over which he has little control?

The underlying purpose of the system is to provide support and maintenance for those who were dependent totally or partially, upon the deceased employee, and thus save them from want, and the public from a charge. Dosker's Compensation Law, § 164. If the employee was, in his lifetime, contributing to the support of more than one dependent of different degrees, why should his death work a preference in favor of one or of a single class to the exclusion of all others, provided they all come within one or the other of the classes named in the act? To so hold would often work great hardship, where the dependent, though included in section 3, was in fact 90 per cent. or more, dependent, but not wholly sa Moreover, it would often, as in this case, give the sole total dependent much more than she received in the lifetime of the earner. The widow in this case would receive more from compensation, under the act, than from decedent's earnings, while taking from the partial dependent the little he formerly enjoyed. This was never intended. But, if dependents be allowed to share in the award made by the board in the proportion of their dependency, the cardinal purpose of the act will be fulfilled, while no violence will be done to the letter thereof.

Unless the statute expressly provides otherwise, partially dependent persons may participate in the award with total dependents. Corpus Juris, Workmen's Compensation Acts, Supplement, page 56; Robinson v. Anon., 6 W. C. C. 117; Boyd on Workmen's Compensation, § 498. The text of our statute does not provide otherwise, but rather, when the whole act is considered together, fosters the idea that the two classes of dependents shall share, in the benefits at the same time and in proportion to their dependency; and this appears to be, not only a sound rule, but the fair and just one.

The compensation allowed to several partial dependents should be in proportion to the degree of dependency of each to total dependency, and where there are both total and partial dependents the award should be distributed in the same ratio, upon the average, employed by the deceased employee; that is to say, if the deceased was earning $10 per week, and used 35 per cent., or $3.50 of it, to support himself, there was left, as now, 65 per cent. of his weekly wage, which was distributed between the dependents. He had a totally dependent wife and a partially dependent father; he gave to the wife for her support $4, and to his father $2.50. Should the ratio now be changed simply because of the death of the earner? Is there any sound reason why the father should be wholly cut off from support, when fund available is practically the same? We can find none.

The board should award compensation in the ratio of dependency, whether there be partial dependents only, or some totally and others only partially dependent. The judgment of the trial court, allowing compensation to the partially dependent father and remanding the cause to the Board of Compensation to ascertain and fix the degree of dependency of the father, and to apportion the award between the two dependents, is affirmed.

Judgment affirmed.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

NORFOLK.

FRIER'S CASE.*

1. MASTER AND SERVANT¬WORKMEN'S COMPENSATION ACT KNOWLEDGE OF INJURY-TIME.

Knowledge of employee's injury on part of employer, under Workmen's Compensation Act, pt. 2, § 18, is substitute for written notice required by section 15, and employer must have knowledge within time when written notice should have been given; that is, as soon as practicable.

(For other cases, see Master and Servant, Dec. Dig. § 398.)

2. MASTER AND SERVANT-WORKMEN'S

COMPENSATION

ACT-NOTICE OR KNOWLEDGE OF INJURY.

Fact that subscriber to Workmen's Compensation Act did not give notice to its employee that it was insured under act (part 4, § 21), and that he did not have knowledge of insurance until some months subsequent to injury, had no effect on his rights in relation to giving notice of injury, or claiming excuse therefrom because employer had knowledge of injury, and no effect upon finding of Industrial Accident Board. (For other cases, see Master and Servant, Dec. Dig. § 398.)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION. ACT-REVIEW OF FINDING.

Where it cannot be said that finding of Industrial Accident Board that subscriber or its agent did not have knowledge of injury to employee as soon as practicable after occurrence was not warranted as matter of law, it must stand on appeal from decree of superior court affirming denial of compensation.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

Appeal from Superior Court, Norfolk County.

Proceeding for compensation for injury by Adolphus S. Frier, opposed by the inhabitants of the town of Randolph, the employer, and the Travelers' Insurance Company, the insurer. Compensation was denied, the denial affirmed by the superior court, and the employee claims appeal. Decree of the superior court affirmed.

Michael J. Daly, of Randolph, for appeilant.

Walter I. Badger and Louis C. Doyle, both of Boston, for appellee.

CROSBY, J. The employee, Adolphus S. Frier, while in the employ of the town of Randolph as janitor of a school building, was injured on two occasions. His first injury occurred on May 19, 1916, and the second on December 4, 1916. The member of the Industrial Accident Board who heard the cases found that no claim for compensation was ever filed for the first injury. The statute requires that proceedings under the act shall not be maintained unless a claim therefor has been made in writing in accordance with St. 1911, c. 751, pt. 2, § 15, and section 23, as amended by St. 1912, c. 571, § 5.

[1] As to the second injury the member of the board found that it * Decision rendered, Feb. 26, 1919. 122 N. E. Rep. 195.

arose out of and in the course of the claimant's employment; that a claim was filed within the statutory period; that while no notice of the injury was given as provided by St. 1911, c. 751, pt. 2, §§ 15, 16, 17, and 18, the town had knowledge of the injury and "therefore, the fact that the employee failed to give notice in writing * * * is not a bar to these proceedings.". Section 18. This finding is based upon the fact that the chairman of the school committee of the town filed with the board reports of the employee's injuries, copies of which are annexed to the record. The report of the injury of May 19, 1916, was filed on May 9, 1917, and that of the injury of December 4, 1916, was filed on May 7, 1917; both reports are dated May 7, 1917.

No new evidence being presented (the report of the member containing all the material evidence), the board on review found:

"That the employee is not entitled to maintain these proceedings [as to either injury] because notice of the injuries was not given, as required by part 2, § 15, and that, in lieu thereof, the subscribers or their agent, did not have knowledge of such injuries as soon as practicable after their occurrence. Therefore, the employee is not entitled to compensation under the act."

While it is plain that the reports filed would well warrant a finding that the town had knowledge of the injuries at least as early as May 9, 1917, it does not follow that "the association, subscriber or agent" had such knowledge as takes the place of want of notice under section 18 of the act. The written notice of the injury which the statute requires under section 15 must be given "as soon as practicable after the happening thereof." The knowledge which the subscriber has under section 18 must have been acquired within the time limited for the giving of notice under section 15; in other words, such knowledge must be had as soon as practicable after the employee is injured. In Brown's Case, 228 Mass. 31, it was said at page 37, 116 N. E. 897, at page 898:

"Knowledge on the part of the employer is a substitute for the written notice required by St. 1911, c. 751, pt. 2, § 15, and the employer must have knowledge within the time when written notice should have been given, namely 'as soon as practicable after the happening of the injury. Jeremiah Murphy's Case, 226 Mass. 60 [115 N. E. 40]."

[2] The fact that the subscriber did not give notice to the employer that it was insured under the act (part 4, § 21), and that he did not have knowledge of that fact until on or about February 27, 1917, has no effect upon his rights or upon the finding of the board. Young's Case, 218 Mass. 346, 106 N. E. 1.

[3] It cannot be said the finding that the subscriber or its agent "did not have knowledge of the injuries as soon as practicable after their occurrence," was unwarranted as matter of law; accordingly, it must stand. The entry must be

Decree affirmed.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

SUFFOLK.

BERMAN'S CASE.

IN RE GULF REFINING CO.

IN RE TRAVELERS, INS. CO.*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -QUESTION OF FACT-DECISION OF INDUSTRIAL ACCIDENT BOARD.

Whether physical ailments of female employee had any causal connection with fall from swivel chair in which she was sitting in course of employment was a question of fact, decision of which was wholly for the industrial board, whose conclusion cannot be reversed.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

Appeal from Superior Court, Suffolk County.

Petition by Theresa D. Berman, the employee, for compensation for personal injuries under the Workmen's Compensation Act against the Gulf Refining Company, the employer, and the Travelers' Insurance Company, the insurer. The claim for compensation was dismissed, the order of the Industrial Accident Board affirmed by the Superior Court, and, from its decree, the employee appeals. Decree affirmed.

Thos. E. Hamill (Harry Finestone, of Chelsea, on the brief), for employee.

Walter I. Badger and Louis C. Doyle, both of Boston, for Travelers, Ins. Co.

PER CURIAM. The crucial question on this record was whether certain physical ailments of the employee had any causal connection with a fall from a swivel chair in which she was sitting in the course of her employment by a subscriber under the Workmen's Compensation Act (St. 1911, c. 751, as amended by St. 1912, c. 574). The single member and the industrial accident board found that there was no causal connection.' That was a pure question of fact. Its decision was wholly for the board, whose conclusion under these circumstances cannot be reversed. Pigeon's Case, 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737; McCarthy's Case 231 Mass. 259, 120 N. E. 852.

Decree affirmed.

* Decision rendered, March 11, 1919. 122 N. E. Rep. 395.