316 Mass. 732 | Mass. | 1944
This is a workmen’s compensation case (G. L. [Ter. Ed.] c. 152) arising out of the death from injury of the employee, George S. Roney. Henrietta Burroughs — herein referred to as the claimant — claimed compensation as a dependent of the employee. She appealed to this court from a decree of the Superior Court reciting that “the employee left no dependents” and awarding no compensation to her. The word “dependents” as used in the workmen’s compensation law is defined thereby 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.” G. L. (Ter. Ed.) c. 152, § 1 (3). There is no evidence and no contention' that the claimant, at the time of the employee’s death, was his wife, child or parent, who was “conclusively presumed to be wholly dependent for support” upon him. § 32. The claim of the claimant, therefore, falls within the provision of said § 32 that 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.” And the burden of proving the fact of dependency was on the claimant. Ferriter’s Case, 269 Mass. 267, 268. Moore’s Case, 294 Mass. 557, 558.
According to the findings of the single member the claimant was the divorced wife of the employee’s cousin — obviously not his “next of kin.” The single member stated further in his findings: “I find and rule, therefore, that the claimant, Henrietta Burroughs, has failed to sustain her burden of proving that she was a member of the decedent’s family because of a voluntary assumption by him on grounds favored by the law of an obligation to support her, and a dependent within the meaning of and entitled to the benefits of Chapter 152, of the General Laws,” and dismissed
The question for determination is whether the decree of the Superior Court on the issue of dependency was right on the findings of fact of the reviewing board, the ultimate trier of fact. Such findings of fact cannot be reversed unless they are not warranted by the evidence or are in some other respect vitiated by error of law. McGowan’s Case, 288 Mass. 441, 443. Mozetski’s Case, 299 Mass. 370, 372, and cases cited.
It is clear that the decree of the Superior Court, so far as it denies compensation to the claimant, is in conformity with the ultimate finding of the reviewing board made by accepting and adopting the ultimate finding of the single member. It is also clear that this ultimate finding of the reviewing board is not in conflict with any of its subsidiary findings, and that the evidence reported did not require a finding in favor of the claimant, who had' the burden of proof, and, consequently, warranted a finding against the claimant. Even if the evidence would have warranted a finding in favor of the claimant, the reviewing board was not required to believe the evidence favorable to the claimant (Jameson’s Case, 254 Mass. 371, 372), and, therefore, was not required to conclude that the burden of proof resting on the claimant had been sustained. However, what is here said does not necessarily dispose of the case.
It was the duty of the reviewing board “to make such specific and definite findings upon the evidence reported as would enable this court to determine whether the general finding should stand.” Mathewson’s Case, 227 Mass. 470, 473. Rozek’s Case, 294 Mass. 205, 207. Cahill’s Case, 295
The statutory requirement here stated would not be satisfied by the general finding of the reviewing board, if it stood alone, that “the claimant . . . has failed to sustain her burden of proving that she was ... a dependent within the meaning of and entitled to the benefits of Chapter 152 of the General Laws.” This finding is unlike the finding in Di Clavio’s Case, 293 Mass. 259, 264, that the claimant in that case “was not dependent upon the earnings of the deceased for support at the time of injury.” That was a finding of fact specifically negativing a particular essential element of dependency within the meaning of the statute. As was said in that case of this finding, “No ruling of law is concealed in it” (page 264). But there is another essential element of dependency within the meaning of the statute in addition to the essential element that the claimant was “wholly or partly dependent upon the earnings of the employee for support,” namely, that the claimant was a member of the family of the employee or his next of kin. And the general finding in the present case does not show whether it rested on failure to prove one or the other or both of these essential elements. Although the fact of actual dependency upon the earnings of the employee for support may not involve any question of law, this is not true of the other essential element of statutory dependency so far, at least, as it relates to membership in the employee’s family. A finding that a claimant was or was not a member of the employee’s family naturally involves a ruling of law. And where this question of law is material to the decision of a case, the proper method of preserving thé right of review thereof is by making findings of the subsidiary facts bearing upon this question.
This finding of a somewhat general nature, however, is not even a categorical finding that the claimant had failed to prove that she was a member of the employee’s family, whatever would be the effect of such a finding. The finding is limited to a finding of failure to prove that she was a member of his family because of her failure to prove a voluntary assumption by the employee, on a ground favored by the law, of an obligation to support her. Doubtless failure to prove this fact — in the absence of proof of a legal obligation upon the employee to support the claimant — would be fatal to the claimant’s case under the decisions of this court as to the meaning of the words “members of the employee’s family” in the statutory definition of the word “dependents.” G. L. (Ter. Ed.) c. 152, § 1 (3). See Moore’s Case, 294 Mass. 557, 558-559, and cases cited. In that case it was said that it “has been recognized, however, that, even if there is no legal obligation on an employee to support persons, the voluntary assumption by him, on a ground favored by the law, of an obligation to support them is an element to be considered in determining whether such persons are members of his family” (page 560). Other
Apart from the findings already considered there are a few statements in the findings that can be interpreted as findings of fact, but they are of an incidental nature and fall far short of showing whether or not the claimant was a dependent of the employee or of showing whether or not she was wholly or partly dependent upon his earnings for her support or whether or not she was a member of his family. The other, statements in the findings are recitals of evidence, or statements as to findings warranted by such evidence or as to doubt as to the credibility of this evidence. There is no express finding that the claimant and the employee made their home together, bearing on the question whether or not she was a memberJof his family, although possibly the findings considered as a 'whole may so import. There is a recital that “placing the most favorable construction on the evidence” this fact and various
Nevertheless, a case ordinarily will not be remanded to the reviewing board for the finding of subsidiary facts if the evidence would not warrant a finding contrary to the general finding of the reviewing board. See Rozek’s Case, 294 Mass. 205, 207; Cahill’s Case, 295 Mass. 538, 539-540. This is not on the ground that it was not the duty of the reviewing board to make findings of subsidiary facts, but is rather on the ground that the rights of the parties were not jeopardized by the failure to make such findings (see Cahill’s Case, 295 Mass. 538, 539-540), and that it is apparent that such findings would serve no useful purpose, since in no event could such findings, warranted by the
We conclude, however, upon an examination of the evidence reported, that this evidence did not warrant a finding contrary to the general finding of the reviewing board. There was no evidence that the claimant was a dependent-of the employee unless she was a member of his family. And the evidence did not warrant a finding that she was a member of his family. “It has been said that “Family” in its usual sense means “the collective body of persons who live in one house and under one head or management.” . . . That is the significance ordinarily attributed to the word under the act.’ Cowden’s Case, 225 Mass. 66, 67. Gritta’s Case, 236 Mass. 204, 206. Kinship or marriage between such persons is not essential to the existence of a family. Peterson’s Case, 270 Mass. 309. But in some circumstances where there is such a relationship between persons not living in the same household they may be members of a family. Newman’s Case, 222 Mass. 563, 568.” Moore’s Case, 294 Mass. 557, 559. There was no evidence of kinship or marriage between the claimant and the employee. The evidence on this point is merely that the claimant was the
There was evidence tending to show that before the claimant began to live with the employee she “was not very strong and gave up work because she was not able to hold her job.” The claimant testified that she told the employee about her health and not being able to hold her job, and that he felt sorry for her, and said to her, “I am going to make a home for you and the children,” “Let me make a home for you,” and that at first she refused but later assented. She testified that “She thought it was a pretty good proposition when she went to live with Mr. Roney to have him supply a home and give her the money. It was contemplated that she would manage the household and he would have a home. That was the original arrangement. No definite arrangement was made afterwards.”
This testimony of the claimant tended to show that the arrangement between her and the employee contemplated a relation of the claimant to the employee in the nature of a housekeeper relationship. Neither this testimony nor the other evidence of the manner in which the employee and the claimant lived together — much of which was testimony
The claimant testified: “Mr. Roney would hand his pay envelope to . . . [her] telling her to use it as she needed it. They talked together about how much was there. She paid some of the bills and got receipts. He wanted it that way. He paid some of the bills and did all the shopping in the chain stores bringing the things home. . . . Mr. Roney and she would talk over the payment of bills and the buying of groceries and things for the children to wear and then would ask her for some money. He would purchase the articles and bring them home, but always talked it over with her before he made any purchases,^deciding how much would be paid and what kind would be bought. . . . [The claimant] had a very serious operation for which Mr. Roney paid. . . . He trusted her and knew she was a good manager and would do the right thing. . . . [The claimant] did not have complete control over running the house and providing a home for him. He and she managed the house together, talking things over and making out the grocery fist together. It was only once in a while she bought any groceries. She did not consider what she did as a job. It was not an unusual arrangement. Mr. Roney wanted to help her. . . . She had something but not all to say about
There was no evidence that the employee or the claimant could not have terminated the arrangement between them at any time, although in fact it continued for many years. The evidence did not warrant a finding that the employee assumed any obligation to support the claimant and, for a time, her children, other than in accordance with the original arrangement between them, terminable at will, for the purpose of securing her services as a housekeeper in the home that the employee provided for himself. Even if the arrangement was economically favorable to the claimant and she exercised considerable discretion and judgment in the management of the household, it would not follow that her position was other than that of a housekeeper. Nor is a different position of the claimant shown by the evidence of interest of the employee in the claimant’s children while they lived in the household, extending to giving them advice and in some instances correcting them. The evidence suggesting some other relationship of the claimant to the employee than that of housekeeper does not go far enough to show that the employee made the claimant a member of his family. There was some evidence of conversations between the claimant and the employee with respect to marriage, but according to the evidence they did notomarry because of the claimant’s health and because the employee was not divorced. This evidence does not show any change in the arrangement made when the claimant and employee began to five together. The evidence that the employee had been acquainted with the claimant for several years, that she was the divorced wife of a cousin, and that he was sorry for her does not warrant the inference that he voluntarily assumed her support other than as an incident of the maintenance of a home for himself. The evidence may tend to show the reasons for the selection by the employee of the claimant as his housekeeper, but it goes no farther than that, though it may tend to show that one of the employee’s reasons for selecting the claimant as his housekeeper was a generous impulse toward her.
Decree affirmed.