Where the wife has deserted her husband and supported herself, neither she nor, ordinarily, children whom she has taken with her and supported, can recover as dependents.81 This is particularly

death, her dependency upon him was a question of fact, and where the evidence showed that for some time prior to his death the husband had made no contribution to her support, dependency was not established. Avery v. Pacific Gas & Electric Co., 2 Cal. I. A. C. Dec. 311.

Where a collier deserted his wife seven years before his death by accident, and in that time had sent her only 9s. 6d., she, living in the workhouse, was not dependent upon him. Devlin v. Pelaw Main Collieries (1912) 5 B. W. C. C. 349, C. A. Where a workman's wife had lived apart from him for twentytwo years, and he had not supported her during that time, she was not dependent upon him. New Monckton Collieries, Ltd., v. Keeling (1911) 4 B. W. C. C. 332, H. L., and 4 B. W. C. C. 49, C. A. Where a wife, whose husband had deserted her and did not support her, lived with another man, and bore him children, and then on the death of her husband, seven years later, sought compensation for herself and her two legitimate children, they were none of them dependents. Lee v. S. S. Bessie (Owners of), (1912) 5 B. W. C. C. 55, C. A.

81 Where a widow of a deceased employé, who had separated from him prior to his death, and who was living apart from him at the time he was killed by an industrial accident, was earning her living without receiving any aid from him, she cannot claim compensation under dependency in fact, since she was not in fact supported by him at the time of his death. (Cal. Wk. Comp., etc., Act, § 19 [b]) Delgado v. California Portland Cement Co., 1 Cal. I. A. C. Dec. 436. Dependency is not established as a matter of fact, where the evidence shows that the wife had deserted the husband, and for four months immediately preceding his death had not received from him any contributions for her support. Holleron v. Hill, 2 Cal. I. A. C. Dec. 289. In Filliger v. Allen, 1 Conn. Comp. Dec. 35, it was held that a workman's widow, who had not lived with him for eleven months prior to the injury because he drank, and during that time only received $10 from him for support, living with a son, who supported her, was not dependent upon the workman.

Where a wife left her husband, and took their child with her, making her own livelihood for twelve years, she and the child, upon the death of the father, cannot claim compensation as dependents. Lindsay v. McGlashen & Son, Ltd. (1909) 1 B. W. C. C. 85, Ct. of Sess. The wife of a workman who of her own wishes lived separate from him, and supported herself was not his dependent. Polled v. Great Northern Ry. Co. (No. 2), (1912) 5 B. W. C. C. 620, C. A.

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true where she has secured a divorce.82 On the other hand, where a wife residing out of the state with her child, and apart from her husband, was frequently visited by her husband, who sent regular and generous contributions for their support, she is entitled to a death benefit. Where a workman takes into his family a minor child not related to himself or wife, and thereafter, without the child ever having been adopted, deserts his family and for several months prior to his death does not contribute to their support, the child is not a dependent of the workman.84

§ 77. Dependents under federal Act

The federal Act of 1908, continued in force as to injuries prior to the Act of 1916, provides that, if the injured artisan or laborer die within the year, "leaving a widow, or a child or children under sixteen years of age, or a dependent parent," they shall be entitled to compensation. The word "parent" in the Act may be applied to include both parents,85 but not to include a stepfather or stepmother, or a foster parent, where there has been no legal adop tion.87 A foster parent by a legal adoption may, however, be a de

82 Where a workman had been divorced by the mother of his two children, she obtaining the sole care and custody of the children, and he had contributed nothing to their support since that time, but had moved to another state in order to avoid responsibility, the children could not recover compensation as dependents. Reed v. Rothe, Rep. Wis. Indus. Com. 1914–15, p. 33.

83 Majeau v. Sierra Nevada Wood & Lumber Co., 2 Cal. I. A. C. Dec. 425. 84 Delgado v. California Portland Cement Co., 1 Cal. I. A. C. Dec. 436; Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025.

85 (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 784.

86 In re McMurray, Op. Sol. Dept. of L. 571.

87 In re Perkins, Op. Sol. Dept. of L. 579.

A death claim was filed by two alleged widows and by a foster mother. The facts showed that neither was the legal widow, and as the foster moth er had never legally adopted decedent she was held not a dependent parent. In re Garcia, Op. Sol. Dept. of L. 611. An adopted mother must sustain the legal relation to the employé of a parent before a payment can be made to her

pendent parent within the Act.88 The question of dependence is one of fact, and the fact of dependence sufficiently appears if partial dependence is shown. Contributions by the deceased tend to establish a condition of dependence, but this is not the only criterion. The natural and equitable claim for support which the parents have upon their children makes it proper to consider the actual needs of parents; and in ascertaining such needs it is necessary to look to their age, circumstances, position in life, and earning capacity. A parent is not dependent who did not in fact depend in some measure for the means of living upon the deceased; but, if the parent is in actual need, the fact of dependence is sufficiently shown if it further appears that the deceased attempted to supply such need even to a slight extent, or that, but for the death, the parent was reasonably assured that such need would be supplied in some substantial measure.90 The word "child" or "children," as used in the Act, is not restricted to a child or children born in

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as a “dependent parent" within the meaning of the federal Act. In re Huff (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 568.

88 In re Huff, Op. Sol. Dept. of L. 567.

89 In re Rock, Op. Sol. Dept. of L. 573.

90 In re Branch, Op. Sol. Dept. of L. 576.

The deceased employé had, previous to going to work for the Reclamation Service, assisted his parents in the operation of a small farm. On the day he began work he was killed. Considering the age, circumstances, and condition of the parents, they were held entitled as dependent parents. In re Encinas, Op. Sol. Dept. of L. 601. Where decedent was 20 years of age, and until a few days previous to his death in the government employ he had worked on the farm of his parents, to whom he had promised to contribute from his government wages, but met his death before receiving any, the parents were dependent. In re Harris, Op. Sol. Dept. of L. 598. Where decedent, a single man, contributed large sums to his parents, who had five younger children to raise, these facts, considering the financial condition of the parents, constituted dependency. In re Scott, Op. Sol. Dept. of L. 595. Decedent left a widow and widowed mother. The widow filed claim, but died before it was approved. The mother joined in the widow's claim, stating that she was not dependent on her son. Subsequent to the widow's death the mother filed a claim, setting forth her financial condition, that she was 61 years of age, and depended upon her efforts for support. It was held that,

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wedlock, but includes illegitimate offspring," and also a child which has been legally adopted according to the law of the domicile. A woman living as the illegitimate wife of an employé in the Canal Zone does not, on his death, become his widow within the meaning of the Act. A woman divorced from an employé and decreed the custody of his children is not entitled to compensation for his death, though compensation be payable to her as guardian for the children." The marriage of a widow during the compensation year does not bar her from the benefits of the Act.95 Where an injured workman dies before having made application for or received compensation, the spirit and purpose of the Act warrants payment of compensation from date of injury to date of death, as well as for the remainder of the year, to his widow or family.90

although the son had not contributed, yet her financial and physical condition rendered her a dependent parent. In re Munn, Op. Sol. Dept. of L. 597. Decedent was 21 years old. The parents claimed that he had contributed a certain amount, which was in excess of his earnings during a certain period. Considering all the circumstances of the case, including age and financial condition of the parents, it was held that they were not dependent to any extent upon the son; the mere fact of contributions not being sufficient of itself to establish that condition. In re Rees, Op. Sol. Dept. of L. 599. A son was in the habit of sending his mother in Ireland small sums of money about May and Christmas of each year. The mother was a pensioner of the British government and had three other sons. The deceased son left a widow. It was concluded that the mother was not a dependent parent. In re Duffy, Op. Sol. Dept. of L. 594.

91 In re Harding, Op. Sol. Dept. of L. 553.

92 In re Estorga, Apr. 3, 1915, Op. Sol. Dept. of L. p. 566.

93 In re Howell, Op. Sol. Dept. of L. 549. The Act does not grant compensation to a woman who for several years lived in Barbados and as the "reputed wife" of an employé who was killed in the Canal Zone, and to whom she had borne three illegitimate children. In re Agard, Op. Sol. Dept. of L. 550.

94 Op. Sol. Dept. of L. 551.

95 (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 783.

96 In re Sullivan, Op. Sol. Dept. of L. 609. Where an injured employé dies several days or weeks after the injury, compensation is payable from that

§ 78. Claim of dependent

A dependent's claim for compensation does not arise from the workman's injury, but is a new and distinct right of action created by his death," and not, therefore, barred by an award to or settlement with the workman.98 It does not affect the right to recover on such claim that financial benefits have accrued to the dependent from the workman's death," or that the workman's contribudate to and including the date of death, and for the balance of the year to his widow, children, or dependent parents, as the case may be. In re McCarrell, Op. Sol. Dept. of L. 607.

97 (Workmen's Compensation Act, Gen. St. 1913, § 8208, as amended by Laws 1915, c. 209, § 5) Nesland v. Eddy, 131 Minn. 62, 154 N. W. 661. This case finds support in Anderson v. Fielding, 92 Minn. 42, 99 N. W. 357, 104 Am. St. Rep. 665; Michigan Central R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; American R. Co. v. Didricksen, 227 U. S. 145, 33 Sup. Ct. 224, 57 L. Ed. 456.

98 Milwaukee Coke & Gas Co. v. Industrial Commission, 160 Wis. 247, 151 N. W. 245.

Payment of compensation to a minor employé does not bar the independent right of the parent to recover for the loss to herself from the injury to her son. Payment of such compensation is in no sense a payment of wages, though based on wages. King v. Viscoloid Co., 219 Mass. 420, 106 N. E. 988.

Where a workman returned to work after the accident, but later died from its effects, the right of his dependents to recover is independent and separate, and is not affected by an implied agreement which might be assumed to have ended compensation when he returned to work. Williams v. Vauxhall Colliery Co., Ltd. (1908) 9 W. C. C. 120, C. A. (Act of 1897). The right of the dependents of a workman who had accepted money and given his employers a receipt in full satisfaction of all his claims under the Employers' Liability Act or at common law (which receipt was a mere device, covering compensation under the Compensation Act), was not affected or barred by this settlement, as their right was independent. Howell v. Bradford & Co. (1911) 4 B. W. C. C. 203, C. A. On claim for compensation by the dependents of a deceased workman, the fact that he had received payments under a registered agreement, which had been canceled on review, did not bar their independent right. Jobson v. Cory & Sons, Ltd. (1911) 4 B. W. C. C. 284, C. A. As to effect of release to bar claim, see § 189, post.

99 It is immaterial whether the claimant inherited anything from the workman's estate. State ex rel. Crookston Lumber Co. v. District Court, 131 Minn. 27, 154 N. W. 509.

The widow of a deceased workman was wholly dependent, notwithstand