Perotti's Case , 233 Mass. 297 ( 1919 )

Rugg, C. J.

This is an appeal from a decree of the Superior Court entered in accordance with the findings and decision of the Industrial Accident Board, affirming and adopting those of the single member. It is conceded that the employee, a subject of Italy, received fatal injuries in the course and arising out of his employment by a subscriber under the act. This proceeding is brought by his widow, a resident of Italy.

At the hearing before the Industrial Accident Board a motion was made in behalf of the widow that depositions of witnesses be taken in Italy. This was denied. The reasons are not stated, but in that connection it is stated that, at the hearing before the single member, the insurer objected that the testimony of the claimant should be taken by depositions. The single member overruled the objection and proceeded with the hearing. A motion was made in the Superior Court which, although quite informal, is treated as in substance a motion to recommit to the Industrial Accident Board in order that depositions of witnesses in Italy might be taken.

It is provided by St. 1915, c. 275, amending St. 1911, c. 751, Part III, § 3, as theretofore amended, that “Upon the written request of the board or of any member thereof,” filed with the clerk of the Superior Court, commission to take depositions shall issue. The natural inference from the words of this statute is that ordinarily the decision whether such depositions ought to issue or not rests with the board or any member of it. See Derinza’s Case, 229 Mass. 435, 438. It is not necessary to determine whether under any circumstances an unreasonable refusal by the board to make such request'is reviewable. That question is not presented on this record. The claimant, although attention was called to the subject of depositions, chose to go to hearing before the single member without asking for the taking of depositions.

There is nothing on the record except bald denials of the motions for the taking of depositions. The averments ’in the motions are not evidence, nor can they be taken as true. There is nothing to indicate that there was any real reason in their support or that they were not denied rightly. -

The findings of the single member and of the board on review as to the extent of dependency involve no question of law. Manifestly the widow, under the circumstances disclosed, was not entitled to the benefit of the conclusive presumption of dependency established by the act. Nelson’s Case, 217 Mass. 467. The extent of her dependency upon the wages of the deceased employee was a question of fact. Gorski’s Case, 227 Mass. 456, 460. No ruling of law appears to have been made and none was requested. The decision of the board is final on questions of fact and not open to revision. Pass’s Case, 232 Mass. 515, and cases there collected.

Decree affirmed.