Upon an appeal from the final action of the State Compensation Commissioner, denying to the claimants, Raffaele Cueca and Anna Luigia Pirisi, respectively the father and mother of Giovanni Cueca, deceased, right of participation in the Workmen’s Compensation Fund, as persons partially dependent on his contribution for their support.
Claimants • are citizens and residents of the Kingdom of Italy; their son Giovanni. Cueca, a subject of that Kingdom, was killed in a coal mine of the New River Collieries Company, at Eccles, West Virginia, in April, 1914.
The Commissioner found as a fact that the claimants had not proven themselves to be such dependents within the provisions of the Workmen’s Compensation Act, as entitled them to participate in said fund, and denied them relief on this ground alone.
Paragraph (3) of section 33, chapter'10, Acts of 1913, the statute then in force, 'defines.“dependent”, as used in said act, to mean “a widow, invalid widower, child under the age at which he or she may be lawfully employed in any industry, invalid child over such age, father, mother, grand-father or grand-mother, who at the time of the injury causing death
Claimants are, therefore, of the class or classes of persons entitled to participate in said fund if in fact dependents. The evidence of dependency presented by them consisted of very brief affidavits, one by the father, of November 8, 1914, supplemented by another explanatory of the first, of January 18, 1915; one of January 18, 1915, by a neighbor and frequent visitor in the father’s home, and who had assisted him in his correspondence with his son in the United States; another of June 21, 1914, by four witnesses, and four certain so called transmission receipts, showing remittances by deceased to his father in Italy as follows: One of December 29, 1911, for 100 lire; one of April 4, 1912, for 200 lire; one of August 5, 1912, for 150 lire; and one of January 2, 1913, for 250 lire. There is also filed another receipt of November 21, 1912, showing transmission to decedent’s grandmother, ■not a claimant, of 20 lire.
The substance of the affidavits of the father is that deceased was in the habit of sending him on an average of 1500 lire annually, or an average of 125 lire per month, of which he used 90 lire in the exclusive support of the family, “family” being explained in his supplemental affidavit to mean himself and his wife, deceased’s mother, though he sent that amount for the family, for, he says, he used to provide for the needs of the family with his work'; the - balance of the money to remain subject to the disposition of the son. The affidavit of the friend and neighbor is to the effect that he assisted the father in correspondence with the son and read a letter from the latter in which, as his testimony is translated, the son “stated that he would have sent 125 lire monthly for the support of his parents”, and that the father answered saying “that for his support and that of his wife he would have used ninety lire, and that he would take care .of. his children with his own work, the remainant he would have saved for and on account of his son”, that the son “replied to the disposition of his father authorizing him to spend even more. ’ ’ The affidavit of the four persons is that during the time the son was in America he “provided to the support
There is no evidence as to what estate claimants possessed, nor as to the amount of the father’s earnings; nor is there any sworn testimony as to Ms age, or the character of his employment, nor as to his social station, except what may be inferred from the other facts shown; nor is there any evidence as to the earning capacity or earnings in fact of the other members of the family; nor as to how much of these earnings was actually used or actually necessary for the support of the family; the only evidence submitted on these questions being the certificate of the mayor of the home town in Italy showing that the other members of the family consisted of two brothers and two sisters, and stating that this family is “in poor economical conditions.”
Does this evidence, as a matter of law, conclusively establish'the fact of dependency! It will be observed that there is no evidence of any actual remittances by deceased to claimants within one year of his death; the correspondence referred to by one of the witnesses between father and son is not produced, or accounted for. Whether deceased actually sent any money to claimants within the year preceding his death is left to be inferred from the general statement that deceased was in the habit of sending his father about 1500 lire yearly, a fact which no doubt could and should have been shown by positive evidence, if the fact was as we are asked to infer. So far as appears there was no legal obligation on deceased to contribute to the support of his father’s family. For aught that appears he may have ceased to do so for at least a year prior to his death. Our statute giving right to dependents to participate in the Workmen’s Compensation Fund is limited to one of the class enumerated, “who at the time of the injury causing death is dependent in whole or in part for Ms or her support upon the earnings of the employe.” On tMs evidence the Commissioner might, perhaps, have found differently, but was he bound to do so, and can
And it seems to be now settled law in England, under the English act, and in the states of this country having workmen’s compensation laws, that the question of total or partial dependency is one of fact and not of law; that there is no presumption of law as to the fact of dependency respecting any claimant. At one time the decisions left this question in doubt. 1 Honnold on Workmen’s Compensation, p. 224, section 70, and notes; 1 Bradbury’s Workman’s Compensation, 583; Dawbarn’s Workmen’s Compensation Appeals, 1910-1912, 88. The English cases of Davies v. Main Colliery Co., (1899), 1 W. C. C. 92; Main Colliery Co. v. Davies, (1900) 2 W. G. C. 108; and Hodgson v. Owners of West Stanley Colliery, (1910) 3 B. W. C. C. 260, decisions of the House of Lords on appeal, finally settled the question in England. But there, as here, when the evidence is all certified and there is no conflict it may be presented as a quesr tion of law whether there was any evidence on which the findings of the commissioner or court could have been made. In Re Herrick, 4 N. C. C. A. 554, point 2 of the syllabus.
While under our statute the findings of the commissioner are not conclusive. on the fact found, we think his finding
On the evidence in this case can it be said as a matter of law that at the time of his death claimants were dependents in whole or in part for their support upon the earnings of deceased? The Commissioner found the evidence insufficient to support this claim. Some decisions say the dependency does not necessarily mean absolute dependency for the necessities of life, but that it is sufficient that the contributions of the workman are looked to for support in the maintenance of the dependents’ accustomed mode of living. Glass on Workmen’s Compensation Law, 248, and decisions cited. In the leading case of Simmons v. White Brothers, 1 Workmen’s Compensation Cases, 89, it was decided that “dependent”, in the British act, “means dependent for the ordinary necessaries of life for a person of that class and position in life, taking into account the financial and social position of the recipient”, and that “deriving benefit from earnings is not necessarily being dependent upon them.” The same rule was announced in Main Colliery Co. (Limited) v. Davies, supra, where it was said: “The extent to which such dependency existed ivas not a matter for their Lordships to consider. The learned County Court Judge might have been right or wrong as to the exact degree to which that state of things existed; but if it existed at all the appeal must be dismissed.” In that case the wages of the deceased, a boy, and a member of the family, was the matter in question, and it was shown that he contributed his wages to his father, the head of the family, and that the father actually depended in part on those wages to support the family.
The question in these eases is not whether by skimping, the claimant could have maintained himself or his family
For the foregoing reasons we are of opinion that the order of the State Compensation Commissioner was on a former day properly affirmed.
Order of Commissioner Affirmed.