DEPENDENTS.

§ 367. Who are Dependents and what Constitutes Dependency. -The acts generally set forth the classes of persons entitled to claim compensation as dependents. It is therefore essential that the act, under which rights are claimed, be examined. Those decisions of the courts construing the provisions of the statutes relative to who are dependents and what constitutes dependency, which differ somewhat under the different state acts, will be found through out this chapter under their respective classifications.

A constitutional provision authorizing the legislature to enact laws "providing compensation to employees," must be construed to authorize laws not only giving compensation to employees themselves, but also to their dependents."

53

No exact standard for the determination of dependency is pres cribed by statute and it is difficult, if not impossible, to frame a definition which will include the varying conditions under which dependency may exist.54

However, the statutes enumerate who shall be presumed to be dependents, also who may be dependent when actually depending upon deceased for support and one claiming dependency must bring himself within one of the classes enumerated by the statute under which he claims, otherwise the fact that the party was receiving support from decedent will not make him a dependent.55

It has been held in California that in order that dependency of certain persons may be established it is immaterial whether their maintenance has been voluntarily and gratuitously assumed or is legally imposed; and the legislative discretion to determine what dependents shall become distributees of the indemnity is not meas

53. Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, Am. Cas. 1917E, 390, 156 Pac. 491; In re Nelson, 217 Mass. 467, 105 N. E. 357.

54. Miller v. Riverside Storage Co., 189 Mich. 360, 155 N. W. 462. 55. Berger v. Thomas Oakes & Co., 39 N. J. L. J. 296, 13 N. C. C. A. 468; Drummond v. Isbell-Porter Co., 177 N. Y. S. 525, 188 N. Y. App. Div. 374; 4 W. C. L. J. 535, (1919); Benjamin F. Shaw Co. v. Palmatory, Del. -, (1919), 105 Atl. 417, 3 W. C. L. J. 424; Bonnano v. Metz Bros., 188 N. Y. App. Div. 380, 177 N. Y. Supp. 51, (1919), 4 W. C. L. J. 427; Birmingham v. Westinghuos Electric Mfg. Co., 180 App. Div. 48, 168 N. Y. Supp. 520, 16 N. C. C. A. 189; In re Derinza, 229 Mass. 435, 118 N. E. 942, 1 W. C. L. J. 795, 16 N. C. C. A. 87.

ured by the analogies of the Common Law, or the limitations of
compensation acts in force at the time the constitutional provision
was adopted authorizing the Legislature to enact a compensation
act.56

Dependency being a question of fact, at least until the facts are
found, and the facts as varied as the number of cases, each case
must be decided upon its own facts. The first question to be de-
termined is whether or not the claimant suffered loss in respect to
his or her support or maintenance. This being found in the affrma-
tive, it is then necessary to determine whether or not the claimant
was entitled, legally or morally, to consider the contributions re-
ceived from deceased as a part of his or her necessary livelihood;
that is, whether such contributions formed a part of the sort of
support to which the claimant, within considerable radius of rea-
son was entitled. While no exact standard of living can be fixed to
a certainty for any given class, still some standard is necessary. If
a janitress expended all the contributions received from a son on a
wardrobe of silks,no one would likely contend that she was enti
tled to do so, and that such contributions were a necessary part of
her support at least, not to the full amount of the contributions.
On the other hand, a little more latitude might be allowed a stenog-
rapher, or other persons whose employment or station in life re-
quire better clothes. However, the fact that some persons in the
same class of employment and same degree of refinement live inde-
pendently on less than the independent income of the claimaut,
aside from the contributions received from the deceased, is not de-
cisive of the question of the claimant's dependency. Hence, in
establishing a standard of living as a test, it is necessary to give it
considerable elasticity; and this was probably the intention of the
legislatures of the various states when they placed such questions
within the discretion of the boards and commissions for determi-
nation.

The legal obligation of a husband to support his wife, the claimant, the probability that it would have been discharged either voluntarily or under compulsion, the probability that the wife

56. Moore Shipbuilding Corp. v. Indus. Comm., Pac. 257.

W. C. 57

would have enforced her right if the obligation had not been discharged voluntarily are matters of proper consideration in determining whether or not the wife, at the time of the husband's injury, looked to his earnings for her support.57

Dependency under the Utah act, and under most other acts is to be determined upon the facts as they existed at the time of the injury. 58 But despite this provision a woman is entitled to compensation even though her marriage occurred subsequently to the date of the injury, which resulted in her husbands death for her right under the act is based, not on her dependency but on her wifehood. The British Act makes dependency a question of fact

in all cases.60

Under the New York Act, where dependency was established, an award amounting to more than the contributions of deceased to his dependent mother, brothers and sisters was held to be autherized. 61

"A dependent, in law, is one who is sustained by another or relies for support upon the aid of another; who looks to another for support and relies upon another for reasonable necessaries consistent with the dependent's position in life. The dependency which justifies an award is personal dependency for support and

57. New Monckton Colleries v. Keeling, (1911), A. C. 648, 105 L. T. 337, 27 T. L. Rep. 551, 80 L. J. K. B 1205, 55 Sol, J. 687, 4 B. W. C. C. 332, 6 N. C. C. A. 240; McDonald v. Great Atlantic & Pacific Tea Co., Conn., (1920). 111 Atl. 65, 6 W. C. L. J. 525; Atwood v. Conn. Light & Power Co., Conn. (1921), 112 Atl, 269; Morris v. Yough Coal & Supply Co., Pa. (1920), 109 Atl. 914, 6 W. C. L. J. 210; Hancock et al. v. Indus. Comm., Utah, (1921), 198 Pac. 169. 58. Globe Grain and Milling Co. v. Indus. Comm.,-Utah-, (1920), 193 Pac. 642, 7 W. C. L. J. 245; Johnson Coffee Co. v. McDonald,-Tenn. -, (1920), 226 S. W. 215; Kelley v. Hoefler Ice Cream Co.,-App. Div. -, 188 N. Y. S. 584.

59. Crockett v. International Ry. Co., 162 N. Y. S. 357, B 1 W. C. L. J. 1292.

60. New Monokton Collieries Co. v. Keeling, (1911), A. C. 648, 80 L. J. K. B. 1205, 105 L. T. 337, 4 B. W. C. C. 332, 6 N. C. C. A. 240; Simmons v. White, (1899), 80 L. T. 344. 1 W. C. C. 89, 68 L. J. Q. B. 507.

61. In re Hess, 191 N. Y. App. Div. 667, 181 N. Y. Supp. 674, 6 W. C. L. J. 75, (1920).

maintenance-an actual dependency for support consistent with the dependent's position in life. It does not include the maintenance. of others whom the dependent is under no legal obligation to maintain, or contributions which merely enable the donee to accumulate money.'

97 62

In the absence of evidence to show that deceased's brother was actually dependent upon him, an award in favor of the brother was erroneous. The giving of money to the grandmother of deceased to assist in paying off a mortgage, and not for support, does not constitute her dependent upon him, for the purpose of the compensation law is to provide support for dependents, and not to pay their debts."

63

"The test is, not what conditions arise after the accident, but what was the condition at the time of the accident. Here it appears that the grandmother was saving money to pay on the mortgage, and to discharge other obligations, and that she was enabled to do this because 'poor Joe' helped 'out good;' but there is no evidence that her own husband was not in a position to meet his lawful obligations. "764

62. Rock Island Bridge & Iron Works v. Indus. Comm., 287 Ill. 648, (1919), 122 N. E. 830, 4 W. C. L. J. 33; Dazy v. Apponaug, 36 R. I. 81, 89 Atl. 160, 4 N. C. C. A. 594; Simmons v. White Bros., (1899), 1. Q. B. 1005, 68 L. J. Q. B. 507, 1 W. C. C. 89, 80 L. T. 344, In re Hora, Ohio Ind. Comm., (1914), 6 N. C. C. A. 242; Jackson v. Erie R. Co., 86 N. J. L. 550, 91 Atl. 1035; Tirre v. Bus Terminal Co., 172 App. Div. 386, 155 N. Y. S. 883; McCarthy v. Order of Protection, 153 Mass. 314; McDonald v. Great Atlantic & Pacific Tea Co., Conn. 111 Atl. 65, 6 W. C. L. J. 525; Alden Coal Co., v. Indus. Comm.-, Ill., (1920), 127 N. E. 641, 6 W. C. L. J. 274; Morris v. Yough Coal & Supply Co., -Pa., (1920), 109 Atl. 914, 6 W. C. L. J. 210; Rockford Cabinet Co. v. Indus. Comm., Ill. (1920), 129 N. E. 142, 7 W. C. L. J. 280; McDonald v. Employer's Liab.. Assur. Corp.-Me.-, (1921), 112 Atl. 719; Richardson Sand Co. v. Indus. Comm., Ill. —, (1921), 129 N. E. 751; Morgan v. Butte Cent. Mining & Mill Co.-Mont.-, (1920), 194 Pac. 496.

63. Mulraney v. Brooklyn Rapid Transit Co., 180 N. Y. S. 654, 5 W. C. L. J. 731; 190 App. Div. 774; Wilkes v. Rome Wire Co., 184 App. Div. 626, 172 N. Y. S. 406, 3 W. C. L. J. 174; Dazy v. Apponaug Co., 36 R. I. 81, 4 N. C. C. A. 594, 89 Atl. 160.

64. Mulraney v. Brooklyn Rapid Transit Co., 190 App. Div. 774, 180 N. Y. S. 654, 5 W. C. L. J. 731; Newton v. Rhode Island Co.,― R. I.

But this does not preclude a consideration of a minor's wage increase, as this rule relates only to accertaining who are dependents. 65

Under the Illinois Act, illegitimate children are not included within the protection of the Workmen's compensation act, Section 7 providing for payment of compensation for injury resulting in death, if the employee leaves children or other lineal heirs, whom he is under legal obligation to support. The Supreme Court of Illinois follows the common law rule which is that parents are under no legal obligation to support an illegitimate child.66

A minor employee's parents and their family are dependent upon him, if contributions from his earnings are reasonably necessary to support the family; otherwise not. 67

The decisions on the question of illegitimate children are not in accord. The Connecticut Supreme Court holds that illegitimate children living with and dependent upon deceased for their support, are such dependents as are entitled to compensation."

Minor children in the custody of a divorced wife, where the decree of divorce made no provision for the support of the children by the father and he furnished the children no support after a brief space of time, except gifts of money and clothing when he chose to do so, were held not to be total dependents under the Maryland Workmen's Compensation Law, Sec. 35.69

(1919), 105 Atl. 363, 3 W. C. L. J. 527; Birmingham v. Westinghouse Electric & Mfg. Co., 167 N. Y. S. 520, 180 App. Div. 48, 1 W. C. L. J. 241, 16 N. C. C. A. 179; In re Hess, 191 App. Div. 667, 181 N. Y. S. 674, (1920), 6 W. C. L. J. 75; Mac Donald v. Employers' Liab. Assur. Corp., Me., (1921), 112 Atl. 719.

65. Kilberg v. Vitch, 171 App. Div. 89, 156 N. Y. Supp. 971.

66. Murrell v. Indus. Comm., 291. Ill. 334, 126 N. E. 189; 5 W. C. L. J. 673; Scott v. Indep. Ice Co., 135 Md. 343, (1919), 109 Atl. 117, 5 W. C. L. J. 702.

67. In re Stewart, Ind. App.-, (1920), 126 N. E. 42, 5 W. C. L. J. 514; Moll v. City Bakery, 199 Mich. 670, 165 N. W. 649, 1 W. C. L. J. 391, 16 N. C. C. A. 186.

68. Piccinim v. Conn. Light and Power Co., 93 Conn. 423, (1919), 106 Atl. 330, 4 W. C. L. J. 18. Note: For question of Illegitimate Children see title, "What Children may be Dependents," § 374 post.

69. State Industrial Accident Commission v. Downton, 135 Md. App. 412, 109 Atl. 63. 5 W. C. L. J. 709.