65

66

adopted by his widow after his death, and also include posthumous children, legitimate or illegitimate. A child adopted by a third person is not entitled to compensation by reason of the death of the natural parent." A daughter over eighteen years of age is not a dependent, under the Washington act.68 But in Minnesota a daughter of thirty, not physically or mentally incapaci

be awarded to the child. Mitchell v. Fairchild-Gilmore-Wilton Co., 1 Cal. I. A. C. Dec. 71.

At the time of his death a workman who was killed in the course of his employment was living with and supporting a woman as his common-law wife and a child which had been born to them. It was held that the child was wholly dependent upon the workman for support at the time of his death. In re Mary A. Gloyd, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 79.

66

64" 'Dependents' means such members of the workman's family as were wholly or in part dependent upon the workman at the time of the accident. And 'members of a family' for the purpose of this Act means only widow or husband, as the case may be, and children; or if no widow, husband or children, then parents and grandparents; or if no parents or grandparents, then grandchildren; or if no grandchildren, then brothers and sisters. In the meaning of this section parents include stepparents, children include stepchildren, and grandchildren include stepgrandchildren, and brothers and sisters include stepbrothers and stepsisters, and children and parents include that relation by legal adoption." (Laws 1911, c. 218, § 9) Smith v. National Sash & Door Co., 96 Kan. 816, 153 Pac. 533.

65 State ex rel. Varchmin v. District Court of Ramsey County (Minn.) 158 N. W. 250.

66 A child which was born after its father had been killed by accident is entitled to compensation as his dependent. Williams v. Ocean Coal Co., Ltd. (1908) 9 W. C. C. 44, C. A. (Act of 1897). Where a workman acknowledged the paternity of an illegitimate child, and made plans to marry its mother, but was killed by accident before he had done so, and some months before the birth of the child, the child was a dependent of his. Schofield v. Orrell Colliery Co., Ltd. (1910) 2 B. W. C. C. 294, H. L., and 301, C. A.

67 (Wk. Comp. Act Wash. § 5) Rulings Wash. Indus. Ins. Com. 1915, p. 16. The illegitimate child, whose mother was a farm servant, who promised a small sum semiyearly for its support to persons who adopted it without conditions, was not a dependent. Briggs v. Mitchell (1911) 4 B. W. C. C. 400, Ct. of Sess.

68 (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 5.

tated, and yet actually deriving her support from her father, is entitled to the benefits of the Compensation Act as a partial dependent.69

§ 75. Illegal and divorced wives—marriage

Compensation as a dependent may usually be recovered by the innocent victim of a bigamous marriage,7° and by a common-law wife, if the common-law marriage was legal," but not by a woman

69 (Laws 1913, c. 467, § 14 [Gen. St. 1913, § 8208], as amended by Laws 1915, c. 209, § 5). State ex rel. Maryland Casualty Co. v. District Court (Minn.) 158 N. W. 798.

To Where a woman is living with her reputed husband at the time of his death as, and believing herself to be, his lawful wife, in consequence of the performance of the usual marriage ceremony prescribed by California law, being ignorant of the performance of a prior ceremony uniting her supposed husband with another, and she has been supported by him up to his death, she is a member of his family, wholly dependent upon him. Rossi v. Standard Oil Co., 2 Cal. I. A. C. Dec. 307.

Where a Welshman left his wife in 1896 and came to America, and in 1900 contracted a bigamous marriage with a woman, with whom he lived and whom he supported until his death, she having no knowledge of his former marriage, she was dependent upon him for support. In re Elizabeth A. Jones, vol. 1, No. 7, Bul. Ohio Indus. Com. 187.

71 A common-law wife is entitled to compensation. In re Mary A. Gloyd, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 79.

Where applicant claimed as widow of deceased, and it appeared that no marriage ceremony was performed or marriage license issued, but that deceased and applicant had agreed to live together as husband and wife in Ohio some years before, and had from that time on so lived together, and had represented themselves to others at all times as husband and wife, and that common-law marriages so entered into were valid in Ohio at the time this relation was there entered into, the Commission held that applicant was entitled to a death benefit as widow of deceased. Hill v. Fuller & Co., 1 Cal. I. A. C. Dec. 155.

Where the only evidence that a claimant residing in Italy was a wife of the workman was the statement of a parish priest that the parties had "contracted matrimony," but the claim itself alleged the claimant as a commonlaw wife, whereas a civil marriage is necessary in Italy, it was held claimant was not the legal wife of the workman, and hence not entitled to compensation. Angelucci v. H. S. Kerbaugh, Inc., The Bulletin, N. Y., vol. 1, No. 12, p. 16.

living in an illicit relationship with the workman,72 nor by a wife divorced from the deceased workman, and for whose support he was obligated to pay a certain sum monthly, but who had received no such payments up to the time of his death.78 It has been held in Massachusetts that an alleged marriage which was not legally solemnized did not entitle the woman to recover compensation as the dependent of her supposed husband, though she honestly believed that she was contracting a legal marriage. But where a Wisconsin city was situated part in one county and part in another,, and the workman and his widow, without any intention to circumvent the law requiring the procurement of a license in the county of their residence, obtained the license in the other county than that in which they lived, it was held that the marriage was valid, and that the widow was entitled to compensation."

74

The

72 Sexton v. Mass. Bonding & Ins. Co., 1 Cal. I. A. C. Dec. 48. Where a woman cohabits with a man for a long period of years, and is the mother of a family of children by him, but is not his wife, but the wife of a man who has previously deserted her, she is not a "member of the family" of the man she is living with, although she is in fact supported by and dependent upon him, and actually living with him as the mother of his children and member of his household. (Wk. Comp. Act, § 19 [c]) Pollock v. Wagner Leather Co., 3 Cal. I. A. C. Dec. 37.

A woman living with the workman as though she were his wife and dependent on him for support, but not legally married to him, her marriage to him being illegal because he has a wife of whose existence she does not know, is not entitled to compensation under subsection 4 of section 2394-10, Stats., providing that "no person shall be considered a dependent unless a member of the family of the deceased employé, or one who bears to him the relation of husband or widow, or lineal descendant, or ancestor, or brother or sister." Armstrong v. Indus. Com. of Wis., 161 Wis. 530, 154 N. W. 844.

73 Mitchell v. Crichton, 2 Cal. I. A. C. Dec. 1005.

74 One claiming to be the widow of the employé entered into a ceremony of marriage with him in good faith. It appeared, however, that the alleged marriage was not legal, and that the person who performed same was not authorized to solemnize marriages. It was held that claimant was not a dependent. Gron v. Mass. Employés' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 736 (decision of Com. of Arb.).

75 Reed v. Rothe, Rep. Wis. Indus. Com. 1914-15, p. 33.

widow of a Japanese workman, married by proxy, is not considered a dependent under the Washington act."

$76. Nonsupport and desertion

76

As a general rule, it does not prevent the members of a workman's family from being dependent on him for support that at the time of his death he was unable or refused to support them," or had deserted them,78 especially where there was a reasonable ex76 (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 5. :: Where a fisherman commonly sent money home to his father, but was so poorly paid during two shorter voyages that he was unable to send any home, and was drowned on the second voyage, the father was partially dependent. Robertson v. Hall Bros. Steamship Co. (1910) 3 B. W. C. C. 368, C. A. Where a workman who was drowned had previously often sent money home to help support his parents and sisters, but had not sent any money home on this particular voyage, the family were partially dependent upon him. Turner v. Miller & Richards (1910) 3 B. W. C. C. 305, C. A. A widow, who lived apart from her husband and received not over $5 a year from him, being supported by the help of relatives, the small wages of a child, and occasional work she could do, was totally dependent. Cunningham v. McGregor (1901) 3 F. 775, Ct. of Sess. Where a husband who left his wife to find work obtained employment after two months, but was killed after working a week and before he had given his wife any money, the wife and a posthumous child were entitled to compensation as partly dependent. Queen. v. Clarke (1900) 2 Ir. R. 135, C. A. (Act of 1897). Where a workman's wife had been in an insane asylum for four months previous to his death by accident, and he was legally responsible for her maintenance there, although he did not pay, she was a dependent. Kelly v. Hopkins (1908) 2 Ir. R. 84, C. A.

In Jakubowski v. Brooks, 1 Conn. Comp. Dec. 281 (affirmed by superior court on appeal), it was held that the fact that no contributions were made for a period of three months before the injury, though made at irregular intervals during the three years previous, did not terminate the dependency.

Parents not dependents.—Where a workman's father was in the workhouse at the time of the workman's death by accident, the father was not a dependent. Rees v. Penrikyber Navigation Colliery Co., Ltd. (1903) 5 W. C. C. 117, C. A. (Act of 1897). A woman who, at the time her son died, was being kept in an inebriate reformatory, and who had been in prison for the previous four years, all but ten months, during which time the deceased son supported her, was not a dependent. Addie & Sons' Collieries, Ltd., v. Trainer (1905) 7 F. 115, Ct. of Sess. (Act of 1897).

78 Where a deceased employé, survived by a widow and minor child 20 months old, had deserted them some months prior to his death by accident,

pectation that he would return; 70 but there appear to be exceptions to this rule, as where a deserted wife has long been separated from her husband, the deceased workman, and has supported herself or secured support otherwise than from him, and had no reasonable expectation that he would soon return and support her.8°

without any fault on the part of his wife, and had since that time contributed nothing to their support, they were both nevertheless wholly dependent upon him for support. In re Laura Shaffer, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 7.

A widow was dependent on her husband's support, even though he had deserted her three years before, and had since given her no money or support of any kind, where she was provided for by her mother and friendly charity during the three years. Sneddon v. Addie & Sons' Collieries, Ltd. (1904) 6 F. 992 (Act of 1897).

79 Where a workman, after deserting his wife, no longer supported her, but at the time of his death by accident she was daily expecting return, there was evidence that she was dependent. Coulthard v. Consett Iron Co. (1906) 8 W. C. C. 87, C. A. (Act of 1897). Where a workman left his wife to look for work, and was not heard from for two years, although she expected his return, this was not sufficient evidence to rebut the legal presumption of dependency. Stanland v. Northeastern Steel Co., Ltd. [1907] 2 K. B. 425, C. A. (Act of 1897). Where, upon being left by her husband, who went in search of employment, a widow supported herself by working as a domestic, and, although receiving no support from him, she met him at times, and he was killed by accident two years later, a posthumous child being born after his death, the legal presumption of dependency was not sufficiently rebutted. Williams v. Ocean Coal Co., Ltd. (1908) 9 W. C. C. 44, C. A. (Act of 1897). Failure of a husband in California to remit contributions during his imprisonment for one year and during the succeeding six months is not inconsistent with a total dependency in fact of his nonresident wife, where he had previously remitted to her sums sufficient for her support and there is no affirmative evidence of his intent during the period of nonremittance to sever family relations. Claudio v. California Street Cable Ry. Co., 3 Cal. I. A. C. Dec. 7.

so "Actual dependents" mean dependents in fact, and do not include a wife whom the deceased employé had deserted at the time of his death, and who for more than six years had supported herself without his assistance or even knowledge of his whereabouts. (P. L. 1911, p. 139, § 2, par. 12) Batista v. West Jersey & S. R. Co. (N. J.) 88 Atl. 954, following Miller v. Public Service R. Co., 84 N. J. Law, 174, 85 Atl. 1030.

Where a deserted wife was not living with her husband at the time of his