Freeman's Case , 233 Mass. 287 ( 1919 )

Rugg, C. J.

The deceased employee, a boy sixteen years of age, came to Boston early in September, 1918. He began going to high school, but when he found that tuition was charged him he left school, went to work and on the twenty-sixth of the same month received fatal injuries arising out of and in the course of his employment. This was the second day of his employment.

1. There was evidence sufficient to support a finding of partial dependency by his mother on the earnings of the deceased. Before coming to Boston he had lived at home and had paid to his mother his wages which were substantial in amount. His father was not in good health and testified that he was not able to support his family, consisting of his wife and five children. - The mother testified that she depended upon the wages of the deceased for support; that “Prior to leaving home, Clarence talked with her relative to sending her money for her support. He said that when he went to work he would send all his money home except his board and money for his clothes. . . . He told her he would send it to her for her support.” He went to Boston to go to school and to work out of school hours. The mother did not know that the deceased had begun to work until she received word of his death, and he had sent her no money since he came to Boston. The question of dependency upon the earnings of a deceased employee under the workmen’s compensation act is to be “determined in Accordance with the fact, as the fact may be at the time of the injury.” St. 1911, c. 751, Part II, §§ 6, 7; Part V, § 2. Bott’s Case, 230 Mass. 152. The fact was that at the time of his injury the deceased was at work for wages, which it was his declared purpose as well as his filial duty to send home. The circumstance that the mother did not know that the son was working and that his intent was to send her the proceeds of that particular employment as fast as earned is not by itself decisive. A simple expression of purpose to contribute to support, unaccompanied by any actual contribution after reasonable opportunity, would not constitute dependency. The case at bar, however, in substance and effect discloses injury to the employee before his first pay day and before any opportunity had arisen to make contribution to the support of the dependent out of the wages of the particular service and substantial contributions from the earnings of earlier work. Partial dependency may be found even though the dependent might have subsisted without the aid. McMahon’s Case, 229 Mass. 48. The deceased was a minor; hence a duty rested upon him to turn his wages over to the parent entitled thereto, and a correlative right to receive such wages vested in the parent. Tornroos v. Autocar Co. 220 Mass. 336. The finding of partial dependency by the mother cannot be pronounced erroneous in law. Kenney’s Case, 222 Mass. 401.

2. There was no error, under the circumstances here disclosed, in the admission of evidence respecting the intent of the deceased to send to his mother the part of his wages which remained after paying for his board and clothing. Carriere v. Merrick Lumber Co. 203 Mass. 322, 327. Marcy v. Shelburne Falls & Colrain Street Railway, 210 Mass. 197, 199.

3. The “annual earnings of the deceased at the time of his injury” in Part II, § 6, are to be ascertained by reference to the same factors as are “average weekly wages” in Part V, § 2, unless inapplicable under all the circumstances. It would be a strained construction to interpret “ annual earnings” with reference only to the wages earned at the moment of injury and to calculate other payments under the act upon the footing of “earnings of the injured employee during the period of twelve calendar months immediately preceding the date of injury.” The facts at bar presented a case for the ascertainment of “annual earnings” by reference to the wages received during the twelve calendar months immediately preceding the injury. See Gillen’s Case, 215 Mass. 96.

4. No question was saved on this record to the point whether the wages earned by the deceased in the year before his death were affected by the fact that for a part of the time he received his board as well as money compensation. Hence no decision of that matter is required.

5. The amount of money contributed by the deceased to his mother during the twelve calendar months before his injury was on this record a pure question of fact, on which the finding of the board is final. Pass’s Case, 232 Mass. 515.

6. Expenses incurred by the parent on account of the son are pertinent in determining the fact of dependency, but irrelevant in ascertaining the amount of compensation to be paid after the fact of dependency ,has been established. Dembinski’s. Case, 231 Mass. 261. No error is apparent in this particular.

Decree affirmed.