McMahon's Case, 229 Mass. 48

229 Mass. 48 | Mass. | 1918

De Courcy, J.

The deceased employee, James E. McMahon, on August 6,1916, sustained fatal injuries arising out of and in the course of his employment. The Industrial Accident Board found that the father, Francis J. McMahon, was partially dependent for support upon the decedent, within the meaning of Part II, §§ 6, 7, of the workmen’s compensation act. The contributions for the support of the father, on which this finding was based, were two: the giving by James of $27 for the purchase of certain articles of furniture and the alleged saving by him of the sum of $288.87 toward the payment of the cost of certain alterations in the house “which the employee had contracted to make.” We cannot consider in this connection the payment of board by the decedent nor the purchase by him of various articles of clothing and fruit and his gifts of money for car fares, because the board has found that these were not contributions to the support of the family and the claimant has not appealed from that decision. See Gove’s Case, 223 Mass. 187, 194.

1. As to the father’s dependency. “Dependents” are defined in Part V, § 2, of the statute as “members of the employee’s family or next of kin who were wholly or partly dependent upon the earnings of the employee for support at the time of the injury.” The finding of the board that the father, Francis J. McMahon, was partially dependent for support upon his son James E., must stand if there was any evidence to warrant that finding. Diaz’s Case, 217 Mass. 36. The contribution of $27, even though given for the'purchase of certain articles of household furniture, could be adjudged a contribution to the “support” of his father. And while dependency implies that the father relied on this son for support or help to a substantial degree, partial dependency within the meaning of the statute may be found to exist even though the father could have subsisted without any aid from his son and the son was under no legal obligation to furnish it. Kenney’s Case, 222 Mass. 401. In determining whether this present of $27 was evidence of partial dependency, the contribution must be considered in the light of the other facts before the board. The deceased was twenty-two years old, unmarried, and always had lived with his parents. He was the oldest of six children, none of whom worked except him and his oldest sister, Mary. The father and mother were hard worldng and saving people, with some equity in the homestead and in another house. James went to work for the street railway about the time he reached his majority, and before that he worked in a department store. In both occupations it appears that he offered to his mother (who held the family purse) all his earnings, but she took only $5 per week. During the last years of his life, in addition to his regular employment, “he worked on the cellar of the new addition, cleaned up the yard and cellar, fixed over the place for the hens, fixed up things in the barn, took out the ashes and carried up all the coal and wood. He milked the cow occasionally when his father was not home.” He also worked at times in the cemetery, of which his father was superintendent, and the money he earned “was turned into the house. . . . He very seldom came home without bringing something to some one in the family,” including fruit, wearing apparel, etc., to the value of $1 to $1.50 a week. When the payment of $27 for furniture is viewed in this setting, we cannot say as matter of law that the board could not find it to be a contribution made by a son to a father who looked to that son for support and help. In other words, it cannot be ruled that the finding of a condition of partial dependency was unsupported by evidence. Murphy’s Case, 218 Mass. 278. Gove’s Case, supra. The other contribution on which the board based its decision will be considered under the next heading.

2. The existence of partial dependency on the part of the father having been established, the further question arises as to the amount to be paid to the dependent. The specific provision of our statute, Part II, § 6, as amended by St. 1914, c. 708, § 2, is as follows: “If death results from the injury, the association shall pay the dependents of the employee, wholly dependent upon his earnings for support at the time of injury, a weekly payment equal to sixty-six and two thirds per cent of his average weekly wages, but not more than ten dollars nor less than four dollars a week for a period of five hundred weeks from the date of the injury; but in no case shall the amount be more than four thousand dollars. If the employee leaves dependents only partially dependent upon his earnings for support at the time of his injury, the association shall pay such dependents a weekly compensation equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents bears to the annual earnings of the deceased at the time of his injury.” It is agreed that the employee earned $818.52 during the last year of his life. To a person wholly dependent there would be due a weekly payment of $10, or the maximum amount under the statute. The father in this case is entitled to such proportionate part of $10 a week as the amounts received by him from James bear to said annual earnings of James.

The only undetermined element in this problem is the amount which James contributed to his father during the year. In addition to the payment of $27 already referred to, the board found that “the saving of the sum of $288.87 toward the payment of the cost of certain alterations on [the family] home, which the employee had contracted to make,” was a contribution to the support of the dependent. As to this item, the evidence would warrant a finding that James made an oral agreement with a carpenter for certain alterations in his father’s house, for $1,200; and that before the death of James the carpenter had put $205.05 into the house in stock and labor. But no payment ever was made by the decedent on the contract. At the time of his death he had money deposited in four banks, amounting in all to $338. Apparently the board adopted the finding of the arbitration committee that the deceased was saving $288.87 of this wherewith to pay for the alterations, in accordance with a promise made to his mother. But, even if we assume that this sum came from the wages of the deceased and was earned during the year preceding his injury, the money remained entirely in his legal possession and control and he could do with it what he pleased. There was nothing on the bank books nor in the father’s possession to even identify the money as being saved for the performance of this unexecuted intention. In our opinion the board was not legally warranted in finding that $288.87 of the moneys deposited in the banks was an “amount contributed” by him to his father, and it cannot be included in determining the amount payable to the dependent under § 6.

The result is that on this record the dependent is entitled to 27/818.52 (instead of 315.87/818.52) of $10 each week for five hundred weeks from the date of the injury. The decree appealed from must be reversed, and a decree entered in accordance with this opinion.

So ordered.