247 Mass. 570 | Mass. | 1924
This is an appeal by a claimant under the workmen’s compensation act.
The board member found that the employee’s death resulted from a personal injury received in the course of and arising out of his employment; that, as was admitted, the claimant was the employee’s illegitimate child; that the claimant was dependent on the employee and actually was being supported by him; and that at the time of the injury, she was not living with the employee, but was living with her mother apart from him. The board member dismissed the claim for compensation on the ground that the claimant was not a member of the employee’s family.
After a claim of review, the Industrial Accident Board affirmed and adopted the findings and rulings of the board member.
The insurer requested the following rulings:
“ 1. That the claimant has not sustained the burden of proving that the death of the employee arose out of and in the course of his employment.
“ 2. That upon all the evidence the causal connection between the death of the employee and his employment is a matter of speculation and conjecture.
“3. That the claimant not being a member of the employee’s family, nor his next of kin, is not a dependent within the meaning of the act.”
Numbers 1 and 2 were refused. Number 3 was given.
It is settled by Gritta’s Case, 236 Mass. 204, that an illegitimate child does not come within the meaning of the words “ child ” or “ children ” as used in G. L. c. 152, § 32, although an illegitimate child may, in fact, be a “ dependent” within the statute, if a member of the family of the employee and dependent in whole or in part on his earnings. An illegitimate child is not next of kin to the father.
The claimant lived with her mother entirely apart from the employee, although supported by him. She was not a member of the employee’s family. Cowden’s Case, 225 Mass. 66. Mahoney’s Case, 228 Mass. 555. See Broadbent’s Case, 240 Mass. 449, 452.
It was suggested, for the first time, in this court, that the copies of the decision of the reviewing board submitted to the Superior Court were not certified as required by the statute. G. L. c. 152, § 11. If true, the Superior Court had no jurisdiction to enter the decree appealed from. Sciola’s Case, 236 Mass. 407, 412. We are not certain with regard to the fact. Had attention been called to this defect, if indeed the defect existed, it could readily have been remedied. We feel justified in assuming that the proceedings were regular and in dealing with the appeal.
The decree of the Superior Court does not in terms dismiss the claim. It should be amended by adding: “ and her claim is dismissed.” As so amended, the entry must be
Decree affirmed.
