rendered by reason of the finding of the jury upon this question 'without reference to the evidence upon the other issues in the case, the entry must be:

Exceptions sustained.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.
SUFFOLK.

IN RE COMERFORD.

COMERFORD
V.

CONTRACTORS' MUTUAL LIABILITY INS. CO.*

WORKMEN'S COMPENSATION-RECOVERY BY EMPLOYEE OF INDEPENDENT CONTRACTOR.

Under the Workmen's Compensation Act the employee of an independent contractor can recover compensation from the subscriber, if he shows he was at work when injured on premises under the control and management of the subscriber, or where contractor had agreed to perform the particular work, and, in addition, that his injury arose out of and in the course of employment, which was a part of the subscriber's trade or business, as in case of the removal of building materials and appliances by the servant of an independent contractor (it being customary for the subscriber to contract for the transfer of its materials) from the subscriber's yard to the place where the subscriber was to construct a building.

Appeal from Superior Court, Suffolk County.

Proceedings under the Workmen's Compensation Act by Patrick Comeford, the employee, opposed by the McDonald & Joslin Company, the employer, and the Contractors' Mutual Liability Insurance Company, the insurer. Compensation was awarded, to be paid by the insurer, the award confirmed by decree of the superior court, and the insurer appeals. Decree ordered affirmed.

Norman F. Hesseltine and J. Frank Scannell, both of Boston, for Appellant.

CARROLL, J. The previous decision in this case (224 Mass. 571, 113 N. E. 460), recommitted the case to the Industrial Accident Board for the introduction of further evidence upon the question whether the work performed by Comerford was a part of the business of McDonald & Joslin Co. or was merely ancillary and incidental thereto.

The board found that the workman, Patrick Comerford, was employed as a teamster by Connors, an independent contractor; * Decision rendered, Mar. 4, 1918. 118 N. E. Rep. 900.

and that the subscriber, the McDonald & Joslin Co., engaged Connors to furnish a teamster to cart material, tools and supplies from its yard to the site of a building it was erecting at Mattapan.

On the morning of May, 6 1915, Comerford drove to the subscriber's yard and while engaged there in moving a window sill which was to be used in the construction of the building, he was injured. The subscriber, a firm of building contractors, was accustomed to employ an independent contractor to carry its materials, tools and supplies from its yard to the place where they were to be used. The board found that the "conveyance of picks, shovels, wheelbarrows and of constructed and fabricated parts of a building from the storehouse of the subscribers to the premises where they are to be used, or are to be combined into a proposed structure which the subscribers have undertaken to erect, is a part of the business of such subscriber," and awarded the plaintiff compensation.

If a subscriber makes a contract with an independent contractor to do the subscriber's work and the insurer would be liable to pay compensation if such work was executed by the employé of the subscriber, it is required to pay such compensation to the employees of the independent contractor, if the work is a part of "or process in" the trade or business carried on by the subscriber, and not merely incidental or ancillary thereto, and if the injury occurs "on, in, or about the premises on which the contrator has undertaken to execute the work for the subscriber or which are under the control or management of the subscriber." St. 1911, c. 751, pt. 3, § 17. Under this section the employé of a contractor can recover against the subscriber, if the employé shows he was at work on premises under the control and management of the subscriber or where the contractor has agreed to perform the particular work, and, in addition, that his injury arose out of and in the course of employment which was a part of the subscriber's trade or business, and not merely incidental or ancillary to it. There was evidence to warrant the finding that the carrying of building material and appliances from the subscriber's yard to the place where the building was to be erected, was a part of the trade or business carried on by the subscriber as a building contractor. The removal was not merely ancillary or incidental to the work of constructing the building, and this work could not be contracted for so as to relieve the subscriber of the obligations imposed by the Workmen's Compensation Act, even though it was customary for the subscriber to contract for the transfer of its materials. See Knight v. Cubitt & Co. L. R. (1902) 1 K. B. 31; White v. Fuller, 226 Mass. 1, 114 N. E. 829.

It was undisputed that the injury occurred while the employé was upon the subscriber's premises which were under its control and management, and where the contractor had undertaken to carry on the work. As this work was a part of the

subscriber's trade or business, the decree awarding compensation to the employé is affirmed.

So ordered.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

SUFFOLK.

IN RE DERINZA.

IN RE PUCCI.

IN RE CONTRACTORS' MUT. LIABILITY INS. CO.*

1. WORKMEN'S COMPENSATION-DEPOSITION IN FOREIGN

COUNTRY-STATUTE—“WRITTEN REQUEST."

Under St. 1915, c. 275, § 1, governing the matter of the taking of depositions in foreign countries in workmen's compensation cases, application by the Industrial Accident Board, not in writing, for deposition to take the evidence of deceased's widow, living in Italy, was irregular; the filing of the interrogatories by the secretary of the board not being a written request for a commission.

2. WORKMEN'S COMPENSATION-REQUEST TO TAKE DEPOSITION IN FOREIGN COUNTRY-NUNC PRO TUNC ORDER.

The omission of the board to make written request for deposition to take evidence in a foreign country, as required by statute, could be cured by the filing of a written request by the board or some member, and the allowance of the request by the superior court by nunc pro tunc order.

3. WORKMEN'S COMPENSATION-DEPOSITION IN FOREIGN

COUNTRY-REQUEST.

The secretary of the board in its behalf cannot make the written application for commission to take deposition in a foreign country, as required by St. 1915, c. 275, § 1, providing that the commission shall issue on the written request of the board or any member, which fairly imports that the application must actually be signed by the board or some member.

4. WORKMEN'S

COMPENSATION-DEPOSITIONS-DEFECTIVE. FORM-FAILURE TO OBJECT-ADMISSIBILITY.

Where the board did not request in writing commission to take deposition in a foreign country, as required by the statute, but no objection was made to the form of the deposition until it was offered in evidence before the arbitration committee, the insurer having filed interrogatories, and so must have known or had an authority to observe the irregularity in the inception of the deposition, the deposition was admissible, since only objections to the substance of the interrogatories or answers can avail when presented for the first time at the trial.

*Decision rendered, March 4, 1918. 118 N. E. Rep. 942.

5. WORKMMEN'S COMPENSATION-OBJECTION TO DEPOSITION.

In a workmen's compensation case, where the insurer did not know of the fact that interrogatories to decedent's widow, resident in Italy, were framed by the secretary of the board in behalf of claimant until advised of it by the report of the arbitration committee, the insurer's objection to the deposition on such ground is open to it at the trial.

6. WORKMEN'S COMPENSATION INCOMPATIBILITY BETWEEN DUTY OF ARBITRATION COMMITTEE AND PREPARATION OF INTERROGATORIES.

There is no necessary incompatibility between the duty imposed upon the arbitration committee of passing upon the rights of the dependents and the insurer, and the preparation of interrogatories to the widow of a deceased employee, resident in a foreign country, by the secretary of the Industrial Accident Board at the request of the arbitration committee. 7. WORKMEN'S

LESS ERROR.

COMPENSATION-AWARD-REVIEW-HARM

In a workmen's compensation case, error in the reception of documentary evidence to prove decedent's marriage to his widow, resident in Italy, and the birth of their children, did not call for reversal of the decree affirming the award of compensation where the widow in her deposition gave competent testimony as to the same matters.

8. WORKMEN'S COMPENSATION-REVIEW-RESERVATION OF GROUNDS.

In a workmen's compensation case, the widow residing in Italy, where insurer asked for no specific ruling directed to the defect in the evidence that the testimony of the widow as to her husband's contributions to her support was stated wholly in terms of lire, the point that the board could not take notice of the value of the lire in United States money, and that the value and rate of exchange must be proved, it is not open to the insurer on appeal from the decree of the superior court; the insurer's general request that there could be no recovery not being open to the interpretation that it was aimed at such subsidiary and minor point.

9. WORKMEN'S COMPENSATION ACT-"TOTAL DEPENDENCY UPON EARNINGS."

In a workman's compensation case, the widow residing in Italy, the board's finding that she was totally dependent upon the earnings of her deceased husband for her support, and that her three children were totally dependent, cannot be sustained on evidence showing that, though she had received money from her husband since he came to the United States, nevertheless he owned the house she lived in in Italy.

10. WORKMEN'S

EARNINGS.

COMPENSATION-DEPENDENCY UPON

The terms of the Massachusetts Workmen's Compensation Act award compensation to those dependent upon the earnings of decedent, and not to those supported by him.

11. WORKMEN'S COMPENSATION-DEPENDENCY UPON EARNINGS-ABSENCE OF CONFLICT IN STATUTE.

The terms of the Workmen's Compensation Act (St. 1911, c. 751) pt. 2, §§ 7 and 12, the latter providing that no savings or insurance of the injured employee shall be considered in determining the compensation, did not modify and did not conflict with part 2, § 6, and part 5, § 2, providing that dependency in case of death shall be ascertained solely with reference to the fact whether claimants were wholly or partially de

pendent upon the employee's earnings for support at the time of the injury.

12. WORKMEN'S COMPENSATION-BURDEN OF PROOF OF RIGHT TO RECOVER.

The burden of proving right to recover under the act rests upon the one asserting it, as the widow.

13. WORKMEN'S COMPENSATION-WORTHLESSNESS OF USE OF HOUSE-PROOF.

In a workmen's compensation case, if the house of deceased employee occupied by his widow and minor children was in truth of no value, and the use of it by the family worthless to them, there must be evidence direct or inferential to such fact, as the point cannot be presumed in the absence of any evidence.

14. WORKMEN'S

COMPENSATION-TERMINATION OF PAY

MENTS ON DEPENDENT'S DEATH.

Where the widow of a deceased servant obtains compensation for his death under the Workmen's Compensation Act, the decree should contain a clause stating in express terms the effect of the act that the weekly payment is to cease upon the death of the dependent before the expiration of the period of payment.

15. WORKMEN'S COMPENSATION-NEW HEARING

REVERSAL.

AFTER

Where the board proceeded on erroneous principles of law, the award being reversed, the widow should be allowed, if she desires, to introduce further evidence at a new hearing, and if she does so the insurer must have the same privilege, and the case be considered anew upon the point erroneously decided.

Appeal from Superior Court, Suffolk County.

Proceedings under the Workmen's Compensation Act by Giovanni Pucci, adminstrator, to recover compensation for the death of Michael Derinza. the employee, opposed by Fred T. Ley & Co., Incorporated, the employer, and the Contractors' Mutual Liability Insurance Company, the insurer. Compensation was awarded by the Industrial Accident Board. and, from the decree of the superior court confirming the award, the insurer appeals. Decree ordered reversed, and cause remanded to the board for further hearing on the question of dependency.

The question as to the intention of decedent when he left Italy to rejoin his wife and children, in the deposition of his widow taken by commission in Italy, was as follows:

"When your husband left Italy, was it his intention to return to rejoin you and his children?"

Norman F. Hesseltine and J. Frank Scannell, both of Boston, for appellant.

Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason, of Boston, of counsel), for appellee Derinza.

RUGG, C. J. The deceased admittedly received fatal injuries in the course of and arising out of his employment by a subscriber under the Workmen's Compensation Act.

[1] 1. There were irregularities in the application for the deposition to take the evidence of the widow of the deceased. Prior to the enactment of St. 1915, c. 275, § 1, there was no special