Gallagher's Case
- Reporters:
- Before:
- Crosby
This сase arises under the workmen’s compensation act (St. 1911, c. 751, Part II, § 7), in which the widow of the deceased employee sеeks to recover compensation upon the ground that she is conclusively presumed to have been wholly depеndent upon him at the time of his death.
The following are the material facts as found by the Industrial Accident Board: Thomas F. Gallagher, the deceased employee, received a рersonal injury arising out of and in the course of his-employment оn December 17, 1912, from which he died on January 15, 1913. His widow, Mary E. Gallagher, hаd been living apart from him, for justifiable cause, for about four years before the accident, and about three years before his death had obtained a decree from the Probаte Court ordering him to pay her the sum of $4 weekly for her support. In November, 1912, the amount so ordered to be paid her was reduced to $2 per week. The husband had but partially complied with these orders at the time of his death, and the wife has been obliged to support herself by her own labor, except for such sums as were paid her under order of the Probate Court.
At the timе the injury was received by the employee, the act provided that: “The following persons shall be conclusively presumеd to be wholly dependent for support upon a deceased employee: (a) A wife upon a husband with whom she lives at ‘the time of his death. ... In all other cases [than those described in (a), (b) or (c) of the section] questions of dependency, in *141whоle or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury.” St. 1911, c. 751, Part II, § 7. The Industrial Accident Board ruled that: “If a wife who is living with her husband at the time of his dеath is conclusively presumed to be wholly dependent upоn his wages for support, a wife who is justified in law in leaving her husband and who seeks the protection of her rights in every possible way аnd endeavors to secure the support to which she is legally entitled, is clearly dependent upon him for support.”
We are of opinion that this ruling was wrong, and that the presumption doеs not apply to a case where a woman is actually living apart from her husband, although this condition may exist without fault on her part.
In construing this clause of § 7, this court said, in Nelson’s Case, 217 Mass. 467, 469: “‘With whom she lives’ in (a) means living together as husband and wife in the ordinary acсeptation and significance of these words in common undеrstanding. They mean maintaining a home and living together in the same hоusehold, or actually cohabiting under conditions which would be regarded as constituting a family relation.” Bentley’s Case, 217 Mass. 79.
Since the death in this case occurred, the Legislature, by St. 1914, c. 708, § 3, has amended clausе (a) by further providing that, if at the time of the husband’s death, the Industrial Accidеnt Board shall find the wife was living apart for justifiable cause or bеcause he had deserted her, she is conclusively presumеd to be wholly dependent upon her husband.
It is plain that clause (a) of § 7 of the statute as it stood at the time of the death of this employee did not аpply to his wife because she was not living with him at that time.
The boаrd should have determined as a fact the question of depеndency under the last clause of § 7, without reference to the conclusive presumption created in clause (a). The case should be remanded to that board for further hearing.
Decree reversed.