328 Mass. 129 | Mass. | 1951
The employee appeals from a decree dismissing his claim for dependency compensation. He was injured on May 3, 1949, and has been receiving weekly total incapacity compensation. The question concerns the dependency of a wife and three children under the age of eighteen, who are in Italy, residing in a house owned by her. He emigrated to this country in January, 1949. The reviewing board adopted the findings and decision of the single member.
General Laws (Ter. Ed.) c. 152, § 35A, inserted by St. 1945, c. 717, as appearing in St. 1946, c. 553, provides: “Where the injured employee has persons conclusively presumed to be dependent upon him or in fact so dependent, the sum of two dollars and fifty cents shall be added to the weekly compensation payable under sections thirty-four, thirty-four A and thirty-five, for each person wholly dependent on the employee .... For the purposes, of this section the following persons shall be conclusively presumed to be wholly dependent for support upon an employee: — (a) A wife upon a husband with whom she lives at the time of his injury.....(c) Children under the age of eighteen years if living with the employee at the time of his injury, or, if the employee is bound or ordered by law, decree or order of court, or by any other lawful requirement, to support such children, although living apart from them. . . . In all other cases questions of dependency shall be determined in accordance with the fact as the fact may be at the time of the injury. ...”
In the report of the single member the following appears: “The employee states that during the months of February and March he worked for one Grasso, a small contractor, and he received for work done during that period $150 to
The use of “therefore” shows that the denial of dependency compensation was based upon the finding that the employee had not sustained the burden of proof as to the fact of dependency. Mahoney v. C & R Construction Co. 311 Mass. 558.
1. So far as the wife is concerned, there was no error. Since she was not living with her husband at the time of the injury, Gorski’s Case, 227 Mass. 456, 458, her dependency was not conclusively presumed under § 35A (a), but was a question of fact. The evidence did not require a finding that she was receiving support from the employee at the time of the injury. The employee’s testimony as to payments could have been disbelieved. The finding was, in substance, that the wife had received no support from the employee since his arrival in this country. That was sufficient basis for a conclusion that she was not a dependent. Di Clavio’s Case, 293 Mass. 259, 263.
The employee seeks to draw a distinction between § 35A and § 31 in that the latter section provides, in case of death of the employee, that payments are to be made to certain persons “wholly dependent upon his earnings for support at the time of his injury.” See Derinza's Case, 229 Mass. 435, 445-447. It is argued that the wording “earnings” does not appear in § 35A. But that word also does not appear in § 32, which also relates to who are dependents.
2. We think that there was error with respect to the children. It is presumed that in all civilized countries a parent is obliged to support his minor children. Vogel’s Case, 257 Mass. 3, 6. The minor children, in the absence of some reason why the employee was not bound to support them, were conclusively presumed to be dependents under § 35A (c). Unless, therefore, there was evidence warranting a finding that he was not so bound, it was not open to the board to decide the children’s dependency as a fact, and it was of no consequence whether he had . contributed to their support since his arrival in this country. Unlike Johnson’s Case, 318 Mass. 741, Smith’s Case, 322 Mass. 186, and many cases cited therein, there was nothing in this record suggesting any ground because of which the employee did not continue under the normal parental obligation to support his minor children. The insurer, on the other hand, contends that the board’s finding as to the children was warranted in the absence of evidence which compelled a finding that at the time of the injury the employee was entitled to
3. The decree is reversed, and a decree is to be entered remanding. the case to the Industrial Accident Board for further proceedings in conformity with this opinion.
So ordered.