tion,21 from the circumstances of the particular case,22 usually those circumstances existing at the date of the injury, 28 rather than at the date of death, as specified by some Acts.24 The Minnesota

Ry., 198 Mass. 163, 83 N. E. 1093; Potts v. Niddrie & Benhar Coal Co., [1913] A. C. 531, 538; Petrozino v. American Mut. Liability Co. (Caliendo's Case), 219 Mass. 498, 107 N. E. 370.

Whether the father and mother and minor brothers and sisters, living together in the same household and subsisting in part on the earnings contributed by the deceased to his father, the head of the household, and applied by the father to the support of himself and his family, were actual dependents on the deceased, was a question of fact for the trial judge. Havey v. Erie R. Co., 87 N. J. Law, 444, 95 Atl. 124. Where decedent's sister was of age, her actual dependency was a pure question of fact. Conners v. Public Service Electric Co. (N. J.) 97 Atl. 792.

Where, after deserting his children and paying nothing to help support them, a father three years later, upon obtaining a good position, agreed to give them a monthly sum, but was injured and died before he had paid anything, the question of dependency must be decided as a question of fact, and the finding made by the sheriff-substitute that they were not dependent “in fact and in law" cannot stand. Dobbies v. Egypt & Levant Steamship Co., Ltd. (1913) 2 B. W. C. C. 348, Ct. of Sess.

21 See §§ 81, 82, post.

22 Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025; Garcia v. Indus. Acc. Com. of Cal., 2 Cal. I. A. C. Dec. 630, 171 Cal. 57, 151 Pac. 741; Stevenson v. Illinois Watch Case Co., 186 Ill. App. 418.

23 Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025.

In Massachusetts, whether an employe's wife and child, who were living apart from him at the time of his death, were dependent on him for support, must be determined on the evidence of the fact as it existed "at the time of the injury." (St. 1911, c. 751, pt. 2, § 7) In re Bentley, 217 Mass. 79, 104 N. E. 432.

Whether a person within the class which may be partially dependent, but not within the class conclusively presumed to be wholly dependent, is a de pendent, is a question of fact to be determined as of the date of the injury. Miller v. Riverside Storage & Cartage Co. (Mich.) 155 N. W. 462.

Dependency is a question of fact, determinable according to the facts existing in each particular case at the time of the fatal injury, except in the instances specified in paragraph 4 of section 35 of the Compensation Act. In re Maude M. Hughes, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 148.

24 The New York Act makes dependency at the time of death a condition for making an award to the dependent. (Wk. Comp. Act, § 16, subd. 4) Tirre v. Bush Terminal Co., 172 App. Div. 386, 158 N. Y. Supp. 883.

HON.COMP.-17

Supreme Court has held that the right to compensation is controlled by the law in force at the time of death, rather than at the time of accident.25

§ 81. Presumption of dependency-Husband and wife

The widow of a workman killed in his employment is usually entitled to compensation, regardless of the question of dependency. The mere fact of widowhood dispenses with proof of dependency.20 As used in a statutory provision that a wife shall be conclusively presumed to be dependent for support on a husband "with whom she lives" or "with whom she was living at the time of his death," the words quoted mean living together as husband and wife in the ordinary acceptation of these words.27 The conclusive presumption

25 State ex rel. Carlson v. Dist. Ct., 131 Minn. 96, 154 N. W. 661. Where the death of the deceased occurred on April 30, 1914, the right to compensation was governed by Laws 1913, c. 467 (Gen. St. 1913, §§ 8195-–8230), and not by the amendment of 1915 (Laws 1915, c. 209). State ex rel. Globe Indemnity Co. v. District Court (Minn.) 156 N. W. 120.

26 Moell v. Wilson, The Bulletin, N. Y., vol. 1, No. 10, p. 15.

27 The phrase "with whom she lives" means living together as husband and wife in the ordinary acceptation and significance of these words in common understanding. They mean maintaining a home and living together in the same household, or actually cohabiting under conditions which would be regarded as constituting a family relation. 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 absence 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. Under such circumstances the widow is given the benefit of an irrefutable assumption that she was supported by the husband. It well may be that this was a legislative concession to the recognized benefit to society arising from the living together of husband and wife, and that like concession should not be made to the anomalous situation of a marital relation

will not be prevented from arising by a separation for a long term of years, where during the time the husband evidenced an intent to renew family relations by contributing regularly and substantially to the support of the dependents.28 That husband and wife are.

not accompanied by a living together, leaving the fact of dependency in such cases to be proved as it is in other cases. There may be many instances where there is a total dependency, though a temporary separation. There may be a 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 describe such a situation. These words 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, 105 N. E. 357, disapproving Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877, so far as inconsistent with this decision.

Where it is not shown that the wife was living apart from her husband for justifiable cause, the question of her dependency on him should be determined under St. 1914, c. 708, § 7, and it should not be conclusively presumed that she was wholly dependent upon him under section 3, cl. "a." In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145. Living together means normal marital cohabitation. In re Fierro's Case, 223 Mass. 378, 111 N. E. 957.

A wife is conclusively presumed to be dependent upon a husband with whom she was living at the time of his death. (Wk. Comp. Act Cal. § 19 [a] [1]) Irwin v. Globe Indemnity Co. of N. Y., 1 Cal. I. A. C. Dec. 547; White v. Scioto Land Co., vol. 1, No. 7, Bul. Ohio Indus. Com. p. 114. This is true, even though they had been estranged for about four months prior to the date of the fatal injury, where a reconciliation had taken place shortly before the injury, and they were living together for a period of eight days before he died. Peloquin v. Fidelity & Deposit Co. of Md., 2 Mass. Wk. Comp. Cases, 718 (decision of Com. of Arb.).

28 Tomasi v. Mazzotti & Butini, 2 Cal. I. A. C. Dec. 936. Where a workman, coming to this country seven years before the accident, left in Italy his wife and children, to whom he sent regular contributions for their support, averaging over $180 annually during the last three years, the wife was living with him at the time of his death within the meaning of section 19 (a) (1) of the Act, and therefore conclusively presumed to be totally dependent. Id. Where up to the time of his death a workman had been supporting his

physically dwelling apart will not prevent this conclusive presumption from arising, where it is intended that their separation shall be merely temporary." But this presumption does not arise

wife, who during the four years of his absence from her had remained in the foreign country of their birth, she was "living with" him at the time of his death, within section 19. Chulata v. Ransome-Crummey Constr. Co., 2 Cal. I. A. C. Dec. 1026. There was a similar holding in Lopez v. Fremont Cons. Mining Co., 3 Cal. I. A. C. Dec. 31.

Where a widow residing in Italy was wholly supported by and wholly dependent upon her husband, although for three years she had been separated from him by reason of his residence in California, and it clearly appeared that he intended to reunite with her, which intention was about to be carried out at the time of his death, she was "living with" him at the time of death, and because of that fact, and also because of her actual support, she was entitled to a death benefit as a total dependent. Petrucci v. Red River Lumber Co., 3 Cal. I. A. C. Dec. 40. But a wife, resident abroad and for nine years separated from her husband, will not be conclusively presumed to be "living with" him, within section 19 (a) (1) of the California Act, in the absence of sufficient evidence of regular and substantial contributions by him tending to show an intent to renew family relations. Claudio v. California Street Cable Ry. Co., 3 Cal. I. A. C. Dec. 7.

In Salvatore v. Andreani & Gelormino, 1 Conn. Comp. Dec. 169, where the deceased workman had been in America six years, and had continually during that time sent sums of money to his wife in Italy, and expected later to rejoin her in Italy, they were "living together" within the contemplation of the Connecticut Act, and she was held to be presumptively dependent upon him.

29 A wife is living with her husband at the time of his death, within the meaning of paragraph 4 of section 35 of the Compensation Act, where there has been no legal or actual separation in the nature of an estrangement, although they are not physically dwelling together, and no facts appear suggesting the inference that either husband or wife had abandoned the other, and had formed the intention of permanently living separate and apart. In re Militza Bonsanar, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 87.

Where the deceased and his wife have been living together as husband and wife, but for two months prior to the accident the wife had been visiting with a sister in Wyoming until the deceased could prepare a home for her in San Diego, where she had planned to join him the week following the accident, it was held that such facts warrant the finding that deceased and his wife were living together as man and wife at the time of the accident and death, within the meaning of the Workmen's Compensation, Insurance, and Safety Act. State Compensation Insurance Fund of the State of Cal.

where the alleged wife is not a legal wife.30 Nor does it ordinarily arise where they are living apart,81 particularly where the wife is

v. Breslow, 1 Cal. I. A. C. Dec. 194. But evidence that an Italian resident of California in 1912 sent $140 to his wife, who had remained in Italy, and, after remitting $40 to her the following February, was then imprisoned until the next January, and on resuming work was accidentally killed during the next June, having made no further remittance, with no evidence otherwise of his intent to renew family relations, was insufficient to establish that they were "living together." Claudio v. California Street Cable Ry. Co., 3 Cal. I. A. C. Dec. 7.

The husband and wife are to be considered as living together, even though one or the other may be absent from the home for a considerable length of time and separated by great distance; they are living together when they are not living apart, when there is neither legal nor actual separation of the bonds of matrimony. Nevadjic v. Northwestern Iron Co., Bul. Wis. Indus. Com. vol. 1, p. 93; Id. 1912-13, p. 21, affirmed in 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877.

30 The presumption of dependency does not arise where the woman living with the workman at the time of his death as his wife is in fact not his legal wife because of the existence of a prior undissolved marriage. Rossi v. Standard Oil Co., 2 Cal. I. A. C. Dec. 307. Where the mother of an illegitimate child is actually living with the father of the child as his wife, and actually wholly dependent upon him, and it is provided that such child is conclusively presumed dependent only in cases of "there being no surviving parent, member of the family of such employé," such mother, living in illicit relations with the employé, is not a member of his family, and therefore not considered a dependent, within the meaning of subsections (a), (3), and (c) of section 19 of the Act. Bustamente v. Gate City Ice & Precooling Co., 2 Cal. I. A. C. Dec. 918.

1 Holleron v. Hill, 2 Cal. I. A. C. Dec. 289. Where at the time of the death of an injured employé his wife is not living with him, and for a long time prior had received no contributions to her support from him, the dependency of the wife is not established. Rossi v. Standard Oil Co., 2 Cal. I. A. C. Dec. 307. Total dependency of a wife upon her husband at the time of his death is not established where, because of his prior desertion of her, she is not living with him at that time. Avery v. Pacific Gas & Electric Co., 2 Cal. I. A. C. Dec. 311. Where a husband has been residing away from his wife for twelve years in a foreign country, she was not living with him, within the meaning of subdivision (a), 1, of section 19 of the Workmen's Compensation Act, and the extent of her dependency is a matter to be proven by evidence. Reis v. Standard Portland Cement Co., 2 Cal. I. A. C. Dec. 869. Where the husband and wife are living separate and apart, and he is killed by indus