Ressi's Case

240 Mass. 136 | Mass. | 1921

Pierce, J.

This is an appeal by the insurer from a decree of the Superior Court affirming a finding.of the Industrial Accident Board, which on review had affirmed and adopted the findings and rulings of the single member of the board. St. 1911, c. 751, and amendments thereto; now G. L. c. 152.

The member upon the reported evidence warrantably found as a fact and ruled as a matter of law within the meaning of St. 1911, c. 751, Part II, § 7; G. L. c. 152, § 32, that the claimant Mary Resse lived with her father, William Ressi, when he received an injury arising out of and in the course of his employment on January 22, 1920, and when, as a result of the injury, he died on November 13, 1920. The evidence further supports the finding that the father was a widower and that the claimant was under the age of eighteen years at the time of his injury.

Upon the above findings the member made a further finding and ruling that the claimant “is conclusively presumed to be wholly dependent upon him [[the father] for support and is entitled to a weekly compensation of $10 for a period of four hundred weeks, subject to the provisions of the act.” This last finding and ruling manifestly overlooks the testimony of the claimant and the admitted fact that Mary Resse became eighteen years of age on April 18, 1920, and consequently was over the age of eighteen years at the time of the father’s death on November 13, 1920; and in so doing disregards the provision of St. 1911, c. 751, Part II, § 7 (see now G. L. c. 152, § 32), which reads: “The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee: ...(c)... children under the age of eighteen years . . . upon the parent with whom . . . they are living at the time of the death of such parent, there being no surviving dependent parent. ... In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury; . . .” It follows that the member and the Industrial Accident Board should have found as a fact the degree of the claimant’s dependency “in accordance with the fact, as the fact may be at the time of the injury,” and should not have ruled on the facts reported that the claimant was within the statute, or one of the class of persons by statute “conclusively presumed to be wholly dependent for support upon a deceased employee.”

The decree of the Superior Court must be reversed and the case remanded to the Industrial Accident Board for a determination of dependency in accordance with the fact.

Decree accordingly.