295 Mass. 106 | Mass. | 1936
The insurer complains that there was no evidence to support the finding of the board that the claimant, who was the mother of the deceased employee, was partly dependent upon his earnings for support at the time of his injury on December 1, 1934. G. L. (Ter. Ed.) c. 152, § 1 (3). This is one of the cases where there is no presumption of dependency and where the question is to be determined “in accordance with the fact as the fact may be at the time of the injury.'' G. L. (Ter. Ed.) c. 152, § 32.
Taking the view of the evidence most favorable to the claimant, these facts could have been found: The claimant and her husband were both about sixty-eight years of age. The husband had not worked for four years. Three of their sons, of whom the deceased employee was one, and a daughter were living at home with their parents. The earnings of Peter were practically exhausted by the expenses of his education for the bar, and the earnings of James and of the deceased Anthony were supporting the home. They gave the claimant all their pay. She paid the household expenses. The husband owned the cottage in which the family lived and a “three decker,'' both on Portland Street in Lawrence. There was only one “steady tenant” paying rent at the rate of $4 a week. There was a store in the cottage, but it was making no
The husband, called by the claimant, testified that at the time of the hearing he had accounts in four banks. He “might have” $8,000 in those four banks. He has had approximately that amount in those banks for ten or twelve years. He testified that it was safe to say that in the year prior to his son’s death he was worth something in the vicinity of $12,000 represented by cash in banks and real estate. He also testified that “there is nothing for property today,” and that the real estate taxes were “close to $200.”
The insurer introduced evidence that the real estate was assessed for $4,700; that the husband had on deposit in banks approximately $4,100 and a claim against a-“closed” bank for about $1,860; and that there were'also a deposit in the joint names of husband and wife of about $2,900 and a joint claim against a “closed” bank for $2,348. The exact amounts on deposit on December 1, 1934, did not clearly appear.
The claimant was not bound by the testimony of her husband, even though she called him as a witness. Salem Trust Co. v. Deery, 289 Mass. 431, 435. Nor was the board obliged to believe evidence introduced by the insurer. Dealing with the case on this basis, the claimant had shown that she was in fact being supported by the earnings of her two sons, one of whom was the deceased, although her husband owned the cottage in which they lived and received rent at the meager rate of $4 a week from the “three decker.” The board could have taken judicial notice that there was little market for real estate in industrial cities in this Commonwealth in December 1934, and that the future value of the property was problematical. Partial dependency presupposes the existence of some resources other than the contributions of the employee. The fact that the claimant’s husband owned this real estate does not, we think, preclude, as matter of law, a finding of partial dependency of the claimant upon the deceased. '
Once the relation of partial dependency is established, “the amount contributed” as those words are used in G. L. (Ter. Ed.) c. 152, § 31, refers to the actual payments made by the deceased to the partial dependents without regard to the degree of dependency upon the deceased as distinguished from other contributors (compare § 32); and the board was also right in making no deduction for the cost of board of the deceased himself. Murphy’s Case, 218 Mass. 278. Gove’s Case, 223 Mass. 187. Cammick’s Case, 259 Mass. 209. Correia’s Case, 275 Mass. 340.
Decree affirmed.