Freeman's Case
- Reporters:
- Before:
- Rugg
Thе deceased employee, a boy sixteen years of age, came to Boston early in September, 1918. He began going to high school, but when he found that tuition was charged him he lеft school, went to work and on the twenty-sixth of the same month received fatal injuries arising out of and in the course of his employment. This was the second day of his employment.
1. There was evidence sufficient to support a finding of partial dependency by his mother on the earnings of the deceased. Before coming to Boston he had lived at home and had pаid to his mother his wages which were substantial in amount. His father was not in good health and testified that hе was not able to support his family, consisting of his wife and five children. - The mother testified that she dеpended upon the wages of the deceased for support; that “Prior to leaving hоme, Clarence talked with her relative to sending her money for her support. He said that when he went to work he would send all his money home except his board and money for his clothеs. . . . He told her he would send it to her for her support.” He went to Boston to go to school аnd to work out of school hours. The mother did not know that the deceased had begun to work until shе received word of his death, and he had sent her no money since he came to Boston. The question of dependency upon the earnings of a deceased employеe under the workmen’s compensation act is to be “determined in Accordance with thе fact, as the fact may be at the time of the injury.” St. 1911, c. 751, Part II, §§ 6, 7; Part V, § 2. Bott’s Case, 230 Mass. 152. The fact was *291that at the time of his injury the deceased was at work for wages, which it was his declared purpose as well as his filial duty to send home. The circumstance that the mother did not know that the son was working and that his intent was to send hеr the proceeds of that particular employment as fast as earned is not by itself dеcisive. A simple expression of purpose to contribute to support, unaccоmpanied by any actual contribution after reasonable opportunity, would not constitute dependency. The case at bar, however, in substance and effect discloses injury to the employee before his first pay day and before any opportunity had arisеn to make contribution to the support of the dependent out of the wages of the particular service and substantial contributions from the earnings of earlier work. Partial deрendency may be found even though the dependent might have subsisted without the aid. McMahon’s Case, 229 Mass. 48. The deceаsed was a minor; hence a duty rested upon him to turn his wages over to the parent entitled thereto, and a correlative right to receive such wages vested in the parent. Tornroos v. Autocar Co. 220 Mass. 336. The finding оf partial dependency by the mother cannot be pronounced erroneous in lаw. Kenney’s Case, 222 Mass. 401.
2. There was no error, under the circumstances here disclosed, in the admission of evidenсe respecting the intent of the deceased to send to his mother the part of his wagеs which remained after paying for his board and clothing. Carriere v. Merrick Lumber Co. 203 Mass. 322, 327. Marcy v. Shelburne Falls & Colrain Street Railway, 210 Mass. 197, 199.
3. The “annual earnings of the deceased at the time of his injury” in Part II, § 6, are to be ascertained by reference to the same factors as are “average weekly wages” in Part V, § 2, unless inapplicable under all the сircumstances. It would be a strained construction to interpret “ annual earnings” with reference only to the wages earned at the moment of injury and to calculate other pаyments under the act upon the footing of “earnings of the injured employee during the periоd of twelve calendar months immediately preceding the date of injury.” The facts at bar рresented a case for the ascertainment of “annual earnings” by reference tо the wages received during the twelve calendar months immediately preceding the injury. Seе Gillen’s Case, 215 Mass. 96.
4. No question was saved on this record to the point whether *292the wages earned by the deсeased in the year before his death were affected by the fact that for a part of the time he received his board as well as money compensation. Hence nо decision of that matter is required.
5. The amount of money contributed by the deceased to his mother during the twelve calendar months before his injury was on this record a pure question of fаct, on which the finding of the board is final. Pass’s Case, 232 Mass. 515.
6. Expenses incurred by the parent on account of the son are pertinent in determining the fact of dependency, but irrelevant in ascertaining the amount of compensation to be paid after the fact of dependency ,has been established. Dembinski’s. Case, 231 Mass. 261. No error is apparent in this particular.
Decree affirmed.