ability of such obligation being fulfilled, dependency is established, even though no support was in fact being furnished at the time of the workman's death.50 The law does not limit dependency of minor children living apart from their parents to cases where actual support was being furnished or contributions made, as such a rule would in many instances exclude children from the benefits of a law that was clearly intended for their protection.51

The Massachusetts Act should be interpreted broadly in harmony with its main aim of providing support for those dependent upon a deceased employé. Under a provision thereof that "a child or children under the age of eighteen years (or over that age but physically or mentally incapacitated from earning) shall be conclusively presumed to be wholly dependent upon the parent with whom he is or they are living at the time of the death of such parent, there being no surviving dependent parent," the child of an employé by a former wife, who is presumed to be dependent, is conclusively presumed to be wholly dependent, because there is, as to it, no surviving dependent parent. Children of the deceased, who are children of the widow, are not conclusively presumed to be dependent, because as to them there is a surviving parent.52 This conclusive statutory presumption is clearly conditioned on the nonexistence of a surviving dependent parent.53 The word "parent" means the lawful father or mother by blood, and not a stepfather or stepmother, or any one standing in loco parentis.

Under the Ohio Act there is no presumption that the father or mother of an unmarried grown son, residing with them, is in any

50 Malzac v. Brule Timber Co., Mich. Wk. Comp. Cases (1916) 330. 51 Id.

52 Coakley v. Coakley, 216 Mass. 71, 102 N. E. 930, Ann. Cas. 1915A, 867, 4 N. C. C. A. 508.

58 In re Employers' Liability Assur. Corporation, 215 Mass. 497, 102 N. E. 697. "The provisions of 6 Edw. VII, c. 58, § 13, as to the dependents entitled to payments, are wholly different from those of our own Act, and decisions of the English courts have no bearing on the case at bar." Id.

degree dependent upon him for support," nor is there any presumption that a child over sixteen years of age is dependent upon its father for support.55 Whether a woman whose husband is living is dependent in any degree for support on her grown son is a question of fact.50

Under the California Act there is no conclusive presumption that nonresident parents are dependent on the deceased workman, whether they are thus dependent being a question of fact.57 The only legal obligation from which dependency may be found to exist as a conclusive presumption of law is that of a parent at the time of his death for the maintenance of a minor child, there being no dependent parent surviving.58 Nonresident children under eighteen years of age receiving support from their father in California, being within this rule of presumption, are conclusively

54 In re Joseph Hora, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 173.

55 In re Maude M. Hughes, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 148. Although a son may be living with his father at the time of the latter's death, if the son be over 16 years of age, there is no presumption that he was dependent upon the father for support. White v. Scioto Land Co., vol. I, No. 7, Bul. Ohio Indus. Com. p. 114.

56 In re Emma Hoffman, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 41.

57 (Wk. Comp. Act [St. 1913, p. 289], § 19a) Garcia v. Indus. Accident Com. of Cal., 171 Cal. 57, 151 Pac. 741.

58 Prichard v. American Beet Sugar Co., 2 Cal. I. A. C. Dec. 341. Where a divorce decree gave the custody of a minor child to the mother, and obligated the father to pay $30 a month alimony for support of the mother and the child, the child was conclusively presumed to be wholly dependent for support upon the father, though up to the time of his accidental death in his employment the father made no payments of alimony. Mitchell v. Crichton, 2 Cal. I. A. C. Dec. 1005. Where a deceased employé leaves a minor child, the issue of himself and a woman living with him as his wife, but to whom he was not married, and the child is living with him at the time of his death and being legally entitled to maintenance by him, such child is conclusively presumed to be wholly dependent on him. Bustamente v. Gate City Ice & Precooling Co., 2 Cal. I. A. C. Dec. 918.

presumed to be dependent, if the law of California makes enforceable against such father claims for maintenance furnished the children in the other state.59 But where an employé takes into his family a minor child not being related to himself or wife, and no adoption proceedings are had, and the employé deserts his family, and for several months before his death makes no payments for their support, and is killed by industrial accident without resuming such payments, the child is not a dependent. Such child cannot claim any conclusive presumption given by the Act, as the deceased was not a parent legally liable for its support, nor can it claim under the section relating to dependency in fact, as there was no dependency in fact at the time of the death. Where a minor daughter has been awarded to the mother by a divorce decree, without any order being made for the child's support, the father is not responsible for such support, and hence there is no presumption of the dependency of the child on the father."1

§ 84. Proof of dependency

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In the absence of the operation of any statutory presumption, the burden of showing the facts necessary to warrant payment of compensation rests upon the dependents as much as it does on the plaintiff in any proceeding at law. The dependents must do more than show a state of facts equally consistent with no right to compensation as with such right. They can no more prevail, if factors

59 Holleron v. Hill, 2 Cal. I. A. C. Dec. 289. Where a parent residing in California is legally bound for the support of his minor child by the law of the foreign state where it resides, such law is enforceable in California, the child is conclusively presumed to be totally dependent upon him for support. Rossi v. Standard Oil Co., 2 Cal. I. A. C. Dec. 307. Minor children, living in Oklahoma, for whose support their father, living in California, is legally liable, are conclusively presumed wholly dependent on him. Avery v. Pacific Gas & Electric Co., 2 Cal. I. A. C. Dec. 311.

60 Wk. Comp. Act, § 19, subds. (a), (b); Delgado v. California Portland Cement Co., 1 Cal. I. A. C. Dec. 436.

#1 Morse v. Royal Indemnity Co., 1 Cal. I. A. C. Dec. 53.

necessary to support the claim are left to surmise, conjecture, guess, or speculation, than can a plaintiff in an ordinary action of tort or contract. A sure foundation must be laid by a preponderance of the evidence in support of the claim before the dependents can succeed. The elements that need to be proven are quite different from those of the ordinary action at law or suit in equity; but, so far as these elements are essential, they must be proved by the same degree of probative evidence. Of course this does not mean, as was said by Lord Loreburn, "that he must demonstrate his case. It only means if there is no evidence in his favor upon which a reasonable man can act, he will fail." 62 On the question of proof

62 (St. 1911, c. 751) In re Sponatski, 220 Mass. 526, 108 N. E. 466, L. R. A. 1916A, 333; quotation from Marshall v. Owners of Steamship Wild Rose, [1910] A. C. 486.

The burden of proving dependency rests on one claiming compensation as a dependent. In re Fierro's Case, 223 Mass. 378, 111 N. E. 957. The burden was on the widow of a deceased employé, where she sought compensation, to show that the employé's service was such as to entitle her to compensation, and that he was not merely a casual employé. This burden did not shift. (St. 1911, c. 751, pt. 5, § 2, as amended by St. 1914, c. 708, § 13) In re King, 220 Mass. 290, 107 N. E. 959.

Claims for compensation by alleged children of a deceased workman will be disallowed, in the absence of substantial proof of paternity. Angelucci v. H. S. Kerbaugh, Inc., The Bulletin, N. Y., vol. 1, No. 12, p. 16. Sufficiency of proof.-Testimony of a wife. who had been separated from her husband, who was killed by accident, that she had received regular monthly contributions for her support, which testimony was contradictory and entirely unsupported, and conflicted with testimony of his sister-in-law to the effect that for the past eight or nine months he had been out of work and unable to pay for his board, was insufficient to prove dependency. Lewis v. Heafey, 2 Cal. I. A. C. Dec. 492.

Burden of proof of death.-The burden of proof is upon the applicant to establish by competent testimony the fact of the death of the employé as a condition precedent to receiving the death benefit. Circumstantial evidence is sufficient where, as in this case, it is impossible to establish the fact of death by production of the body. Shea v. Western Grain & Sugar Products Co., 2 Cal. I. A. C. Dec. 550.

Proof of marriage.-The fact that a man and woman lived together for ten months is not evidence that they were married. Fife Coal Co., Ltd., v. Wallace (1910) 2 B. W. C. C. 264, Ct. of Sess. But in Pappiani v. White Oak

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to establish the fact of dependency, it has been held that, where a son who had been giving his father substantial money contributions was killed by accident, the fact that the father supported or helped to support a crippled brother was not conclusive evidence of his nondependence, and he was in fact partially dependent, but that the mere fact that a father receives money from a son and expends it is not alone sufficient to establish dependency. Evidence that deceased gave his wages to his father, and that such wages were devoted to the support of the family, was sufficient to support a finding that the members of the family were actual dependents. Where claimants for compensation under the Washington Act reside abroad, a sworn statement of dependency must be made before a magistrate, whose authority to take deposition is to be attested by an American consul. In dealing with death benefit claims of nonresident dependents, the California Commission requires at least some of the testimony as to contributions for support to be corroborated by documentary evidence of remittances. Where the parents, residing in Turkey, applied for a death benefit, basing their claim on their own uncorroborated and indefinite testimony and on hearsay evidence, there being no direct evidence of any specific amount of money sent at any particular time for their support, a death benefit was denied. But it does not

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Crushed Stone Co., 1 Conn. Comp. Dec. 619, where all direct evidence of claimant's marriage to deceased had been destroyed, but there was abundant testimony that she had lived with the deceased as his wife for a number of years, and appeared in papers concerned with the adoption of children as his wife, the Commissioner held that she was shown to have been the wife of the deceased.

es Legget & Sons v. Burke (1902) 4 F. 693, Ct. of Sess. (Act of 1897).

64 Main Colliery Co. v. Davies, 2 W. C. C. 108.

65 Havey v. Erie R. Co., 87 N. J. Law, 444, 95 Atl. 124.

66 (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 6.

67 Claudio v. California Street Cable Ry. Co., 3 Cal. I. A. C. Dec. 7.

es Andrew v. Alaska Packers' Ass'n, 2 Cal. I. A. C. Dec. 770.