Edw. J. Colgan, Jr., of Baltimore (Frank J. Pintner, of Baltimore, on the brief), for appellee. BURKE, J. This a workmen's compensation case, and is before us upon an appeal by the employer and the insurer from an order of the superior court of Baltimore city reversing an order of the state Industrial Accident Commission, which disallowed compensation to the claimant, and remanding the cause to that commission. Augustus Kotwall, the deceased, was an unmarried man, and his trade was that of a painter. On the 9th day of May, 1916, he was working as a painter for Charles W. Grant. He died on May 9, 1916, as a result of an injury sustained that day in the course of his employment.” His father, John Kotwall, filed a claim for compensation upon the ground of dependency, and after a hearing before the commission the claim was refused. Subsequently, Anna Kotwall, the mother of the deceased, filed a claim for compensation. A hearing was had upon this application, and on the 3d day of November, 1916, the state Industrial Accident Commission passed an order disallowing the claim, upon the finding that "the claimant in this case was not wholly, nor partially, nor in any wise dependent upon the deceased, and she is therefore not entitled to compensation arising out of the death of Augustus Kotwall." From this order an appeal was taken, and the case was heard- by the court, without a jury, upon the transcript of the proceedings and evidence taken before commission upon Both applications. At the hearing in the lower court the claimant offered one prayer, and the employer and insurer four. The court granted the claimant's prayer, and also granted the second, third, and fourth prayers of the employer and insurer, but refused their first. The granted and refused prayers are here inserted: Claimant's prayer: "The appellant prays the court that if it should find as a matter of fact that Annie Kotwall was partially dependent upon Augustus Kotwall for maintenance and support at the time of said Augustus Kotwall's death, then to rule as a matter of law that she is entitled to compensation therefor." Employer's and insurer's prayer: "The employer and insurer pray the court to rule as a matter of law that there is no evidence in this case legally sufficient to show that claimant was dependent upon her deceased son, Augustus Kotwall, for support at the time of his death, May 9, 1916." There is only one exception in the record, and that was taken to the granting of the claimant's prayer, and to the rejection of the employer's and insurer's prayer. It is not claimed that the mother was wholly dependent upon her deceased son, but it is insisted that she was partially dependent upon him. There is no definition of dependency contained in the Workmen's Compensation Act of this state (Code Pub. Civ. Laws, art. 101), but it is provided that certain enumerated classes shall be presumed to be wholly dependent. The claimant is not one of that class. But it is provided by section 36, art. 101, Code, vol. 3, that: "In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in death of such employee." The question to be decided is this: Is there evidence in the record legally sufficient to show that the claimant was partially dependent upon her deceased son within the meaning of the Workmen's Compensation Act? On some few points the evidence of the claimant and her husband is in sharp conflict, but on the legal question presented by the record it is not our province to determine the credibility of the evidence of these witnesses on controverted questions of fact. The following facts appear to be established by satisfactory evidence: The family of John Kotwall, the father, consisted of his wife, the claimant, and four children, two sons and two daughters. One daughter was living in Detroit, Mich., and was earning her own livelihood. The other three children lived at home. For about five years prior to Augustus Kotwall's death, John Kotwall and his two sons each gave the mother $8 per week, with which she maintained the home and paid all the household expenses. For about three months during the winter the deceased son could not work, and during that time he did not make the weekly payment to his mother, but when he did go to work he paid her the amount of the arrearages. The amount paid was more than sufficient for his board and lodging. John Kotwall was in receipt of $64 per month from the government of the United States, and at the time of his son's death was employed by the Adjutant General of Maryland in a clerical position, and receivec $40 or $50 per month. A few weeks after the death of his son he retired from his position, and had no regular business or occupation until 1918, when he returned to his former employment, but what he is receiving now does not appear from the evidence. John Kotwall owns the house he lives in, which is valued at $1,650, and is subject to a ground rent of $45 per year. He pays the ground rent, taxes, insurance, and furnishes the coal, but refused to pay his wife more than $8 per week for household expenses, saying that the children were contributing. He took the position that the sons must contribute each one-third of the expenses, which they did. The claimant in her examination in chief testified as follows: "I am the mother of Augustus Kotwall. My husband and three children are now living. My son died May 9, 1916, while in the employ of Charles W. Grant. He was earning $15 a week at the time of his death, or $2.50 a day. I was dependent upon him for my livliehoodfor my support and keeping; dependent on him every week. He paid me $8 every week he worked. Q. Did he give you this $8 every week? A. Every week he worked; yes sir. In addition to the $8 which he gave me every week, at times when I needed it he would give me almost all his pay. Quite often I needed more in case of sickness or doctor's bills for myself. I had to fall back on my children. He would help me with more money. He was 24 years old, single, and lived with me." And on cross-examination she said: "My son had worked seven years altogether. He had been paying me $8 a week for five years previous to his death. I have missed his income a great deal. For one thing I am not able to buy things for myself as I would if I had been getting his money. I depended on his paving for clothing and things that I cannot possibly get now. Houses in my neighborhood 'rent for $16 a month. I employ no servant but my daughter. She did the work for me, and I paid her the same as a servant-$3 a week. I have not been able to pay her since my son's death. She is working for me now as she did before, but I do not pay her. I give her her board and purchase her clothing for her when I can. Her father does not contribute anything for her board, nor for her clothing. I have to keep her." She further said that her husband contributes nothing for her clothing. In re Carrroll, 116 N. E. 844, the court said: "Stated generally, a dependent is one who looks to another for support and maintenance; one who is in fact dependent-one who relies on another for the reasonable necessities of life." See, also, Parson v. Murphy, 101 Neb. 542, 163 N. W. 847, L. R. A. 1918F, 479. In Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 Atl. 372, L. R. A. 1916A, 436, where an employee left surviving him two sisters under 18 years of age and a mother to whom he gave $20 per month, which the mother used for her support and that of her minor children,` a finding by the Compensation Commission that she was partially dependent upon him was sustained, although the mother received other support from her husband, who carned $50 per month. In Conners v. Public Service Commission, 89 N. J. Law, 99, 97 Atl. 792, the court said: "The deceased was over age, and therefore entitled to his own wages; that as a voluntary matter he turned his wages into the family fund, and there was evidence justifying a finding that the sister, whether an adult or a minor, received substantial benefit therefrom, of which she has been deprived since his death. This in turn justified a finding that she was an actual dependent. We do not understand the decision of the Court of Errors in the Havey Case to mean that a minor sister cannot be classed as a dependent of a deceased adult brother because she has a father who is under obligation to support her. Such a ruling would shut out the minor brothers and sisters in a case, for example, where the father was incapacitated and earned nothing, and the adult brother was the sole support of the family. So, also, it she was of age, her actual dependency is pure question of fact, to be determined by the test laid down by the opinion of this court in the case of Hammill v. Penna. R. R. Co., 87 N. J. Law, 388, 94 Atl. 313, adopted in the Court of Errors and Appeals [88 N. J. Law, 717], 96 Atl. 292, viz.: 'We understand the phrases "actual dependents" and "who are dependent upon the deceased," as used in paragraph 12 of the act as amended, * * 40 mean relatives in some degree mentioned in that paragraph, who were being wholly or to a substantial degree supported by the deceased at the time of his death'." The evidence in this case is, we think, sufficient to show, or at least legally tended to show, that the claimant, under the principles announced in the cases cited, and which are in accord with those announced in many other cases, was partially dependent upon her deceased son, and therefore the court committed no error in rejecting the employer's and insurer's first prayer, and in reversing the order appealed from, and remanding the cause to the commission. Order affirmed, with costs. SUPREME JUDICIAL COURT OF MASSACHUSETTS. IN RE PASS' CASE. 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-APPEAL-QUESTIONS OF FACT. Whether injured employee proceeding for compensation under Workmen's Compensation Act gave notice required by act, whether insurance association, the subscribers, or their agent had notice of the injury, whether the claim had not been filed as required, whether failure to file it was due to mistake or other reasonable cause, and whether employee had received injury arising out of and in course of employment were questions of fact, as to which appeal will not lie. (For other cases, see Master and Servant, Dec. Dig. § 417[34].) *Decision rendered, April 1, 1919. 122 N. E. Rep. 642. 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-FINDINGS OF INDUSTRIAL BOARD REVIEW. Under the Workmen's Compensation Act, the findings of fact of the Industrial Accident Board stand if there is any evidence to support them. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) 3. MASTER AND SERVANT-WORKMEN'S ACT-INDUSTRIAL BOARD DENCE. COMPENSATION REFUSAL TO CREDIT EVI Industrial Accident Board hearing a workmen's Compensation case was at liberty, so far as review is concerned to refuse to give credit to any part of the evidence not, in their opinion, entitled to credit. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) Appeal from Superior Court, Essex County. Proceedings for compensation for injuries under the Workmen's Compensation Act by Duncan Pass, employee, opposed by the General Electric Company, employer, and the Liberty Mutual Insurance Company, insurer. Compensation was denied, the denial affirmed by the superior court, and from its decree the employee appeals. Decrée affirmed. A. B. Tolman, of Lynn, for appellant. John W. Cronin and Frederick A. Carroll, both of Boston, for in surer. PER CURIAM. This case comes before us by appeal from an adverse decision by the industrial accident board, which adopted and confirmed the finding of the single member. The finding was (1) that the statutory notice required by the act had not been given, (2) that it had not been shown that either the association, the subscribers or their agent had notice of the injury, (3) that the claim for compensation had not been filed as required by the act, (4) that the failure to file the claim was not due to mistake or other reasonable cause, and (5) that the employee had failed to prove that he received a personal injury which arose out of and in the course of his employment. Any one of these findings is fatal to the employee's contentions. [1, 2] These all were questions of fact. No law is involved. It has been held from the very first under the Workmen's Compensation Act (Laws 1911, c. 751, as amended by Laws 1912, c. 571) that the findings of fact of the industrial accident board stand if there is any evidence to support them. Pigeon's Case, 216 Mass. 51, 102 ́N. E. 932, Ann. Cas. 1915A, 737. It is as futile for parties to appeal from a decision of the board on questions of fact as it would be to except to an adverse verdict of a jury or an unfavorable finding by a judge. [3] It is enough to say that the board was at liberty to refuse to give credit to any part of the evidence not in their opinion entitled to credit. The case is within the authority of numerous recent decisions. Fitzgibbons' Case, 230 Mass.. 473, 119 N. E. 1020; Moran's Case, 230 Mass. 500, 119 N. E. 956; Knight's Case, 231 Mass. 142, 120 N. E. 395; McCarthy's Case, 231 Mass. 259, 120 N. E. 852; Berman's Case, 232 Mass., 122 N. E. 395. Decree affirmed. SUPREME JUDICIAL COURT OF MASSACHUSETTS. SUFFOLK. CENTRELLO'S CASE. IN RE J. K. RYAN CO. IN RE TRAVELERS' INS. CO.* 1. MASTER AND SERVANT-LETTING TEAMS WITH DRIVERS -EFFECT ON GENERAL EMPLOYMENT. Driver of team hired out by owner, his general employer, to work for another, remains in employ of general employer, so far as concerns management and care of horses. (For other cases, see Master and Servant, Dec. Dig. § 367.) COMPENSATION 2. MASTER AND SERVANT-WORKMEN'S Owner of teams and horses, who let them with drivers, to company at rate per hour, paying drivers and driving team himself, who was injured in management of horses of his team, held not entitled to compensation from company or insurer under Workmen's Compensation Act, pt. 3, § 17, as to employees of independent contractors. (For other cases, see Master and Servant, Dec. Dig. § 367.) Appeal from Superior Court, Suffolk County. Proceeding for compensation for injuries under the Workmen's Compensation Act by Louis Centrello, the employee, opposed_vy J, K. Ryan, the employer, and the Travelers' Insurance Company. Compensation was awarded, the award affirmed by the superior court, and from its decree the insurer appeals. Reversed. Walter I. Badger and Louis C. Doyle, both of Boston, for appellant. PER CURIAM. [1] Centrello owned three teams which he let with drivers to the J. K. Ryan Company to haul dirt at the rate of $1 per hour for each team and driver. Centrello drove one of the teams himself. At the end of a day's work Centrello got off his cart and went in front, thinking it would be safer to lead the horses down an embankment. He took hold of the horses by the bridle and led them. While doing this his leg was broken by a rolling stone. The J. K. Ryan Company directed the general work of hauling the dirt. The drivers did no work of shoveling or loading and only drove the horses and took the pin out of the cart when it had been driven to the place to dump and replaced it after the cart had been dumped. The Ryan Company did not fix the wages of the drivers. That was done by Centrello. He received no wages himself. He made the profits due to the owner and contractor for letting the teams with drivers. Neither he nor his drivers were on the pay roll of the Ryan Company. There is no evidence that the Ryan Company exercised any control over the drivers respecting their horses, except to direct them where to get dirt and where to dump it. The statement of a foreman of the Ryan Company to the effect that * Decision tendered, March 14, 1919 122 N. E. Rep. 560. |