31 Turner v. Miller (1910) 3 B. W. C. C. 28 Lee v. The Bessie [1912] 1 K. B. (Eng.) 305; Robertson v. Hall Bros. S. S. (Eng.) 83, [1911] W. N. 222, 105 L. T.|Co. (1910) 3 B. W. C. C. (Eng.) 368. N. S. 659, 5 B. W. C. C. 55, 81 L. J. K. B. N. S. 114, 12 Asp. Mar. L. Cas. 89, Ann. Cas. 1913E, 477.

ried son was wholly dependent upon him, | and dependent children are not to be notwithstanding her right to relief from considered wholly, but only partially, defour other sons, who were married, and pendent upon him.37 A father earning who did not contribute to her support.34 wages may be "in part dependent" upon A woman may be dependent upon her the earnings of his child, within the sons as well as upon her husband where meaning of the act; and there is evithe earnings of all went into a common dence upon which the father may be fund out of which the family was sup- found to be, in fact, so dependent, and to ported. The application of this prin- be entitled to compensation for the death ciple works to the advantage of the de- of the child, where it is proved that the pendents, in a case where both the father child contributed to the family fund, and a contributing son were killed in the and that the father received the consame accident,35 and where the son or tribution and spent it in maintaining other contributing member of the family himself and his family.38 only was killed by accident.36 But it may work to the disadvantage of the dependent where the father only was killed, since, according to this view, the mother 1205, 105 L. T. N. S. 337, 27 Times L. R. 551, 55 Sol. Jo. 687, 4 B. W. C. C. 332. 34 Rintoul v. Dalmeny Oil Co. [1908] S. C. (Scot.) 1025.

35 Where a father and two sons, all killed in one accident, paid their wages in a common fund for the support of the family, the mother and the surviving children are entitled to receive compensation in respect to the death of each of the deceased. Hodgson v. West Stanley Colliery [1910] A. C. (Eng.) 229, 79 L. J. K. B. N. S. 356, 102 L. T. N. S. 194, 26 Times L. R. 333, 54 Sol. Jo. 403, 3 B. W. C. C. 260, 392, 47 Scot. L. R. 881.

36 McLean v. Moss Bay Hematite Iron & Steel Co. (H. L.) [1910] W. N. (Eng.) 102, 54 Sol. Jo. 441, 3 B. W. C. C. 402, where a mother sought and was allowed compensation for the death of a son who put his wages into the common household fund, although the mother lived with her husband and was also dependent upon his

wages.

Toole v. The Isle of Erin (1909) 3 B. W. C. C. (Eng.) 110, where the court took the position that the wife cannot be wholly dependent upon her husband and partially dependent upon a brother, for whose death compensation was sought, is overruled in effect by Hodgson v. West Stanley Colliery Co.

37 The effect of the decisions cited in the two preceding notes is to overrule Senior v. Fountains [1907] 2 K. B. (Eng.) 563, 76 L. J. K. B. N. S. 928, 97 L. T. N. S. 562, 23 Times L. R. 634, where it was held that a widow and children of a workman were none the less "wholly dependent upon his earnings at the time of his death" because he had been enabled through the receipt by him, either directly or through his wife as his agent, of moneys from wage earning sons, or of moneys coming to him through other channels, to augment the fund out of which he was legally bound to maintain, and had maintained, his household.

33 Main Colliery Co. v. Davies [1900] A. C. (Eng.) 358, 69 L. J. Q. B. N. S. 755, 83 L. T. N. S. 83, 16 Times L. R.

The mere fact that a man has deserted his family does not preclude them from recovering compensation for his death;39 and the fact that a workman had, when 460, 65 J. P. 20. This decision embodies a doctrine similar to that adopted in an earlier case, in which it was held that a finding of "dependency" was sufficiently supported by evidence that the parents of an employee fourteen years old, who was killed, had received his weekly wages for five weeks before his death, and handed over to him such pocket money as they thought right. Simmons v. White Bros. [1899] 1 Q. B. (Eng.) 1005, 68 L. J. Q. B. N. S. 507, 47 Week. Rep. 513, 80 L. T. N. S. 344, 15 Times L. R. 263.

39 Minor children may be found to be wholly dependent upon the earnings of their father where he had deserted his wife and family, and for two years had made but small payments, amounting in all to £2, for their support, and thereafter, the payments having ceased, the wife obtained a decree against him for alimony, and recovered about 7 shillings from his employers by arrestment used on the decree, and the workman then disappeared and was not subsequently traced until his death. Young v. Niddrie & B. Coal Co. [1913] A. C. (Eng.) 531, 82 L. J. P. C. N. S. 147, 109 L. T. N. S. 568, 29 Times L. R. 626, 57 Sol. Jo. 685, [1913] W. N. 206, [1913] W. C. & Ins. Rep. 547, 6 B. W. C. C. 774, [1913] S. C. 66, 50 Scot. L. R. 744, reversing [1912] S. C. 644, 49 Scot. L. R. 518, 5 B. W. C. C. 552.

It is not a correct proposition in law that when it is found that, as a matter of fact, a father has deserted his children for three years, and paid nothing toward their support during that period, that necessarily ends the matter, and his employer is not liable to pay compensation to his children. Dobbies v. Egypt & L. S. S. Co. [1913] S. C. 364, 50 Scot. L. R. 222, [1913] W. C. & Ins. Rep. 75, 6 B. W. C. C. 348.

Although a workman had turned his wife out of doors, and she had lived separate from him for eleven years, receiving no support from him, she may be found to be wholly dependent upon him. Medler v. Medler (1908; C. C.) 124 L. T. Jo. (Eng.) 410, 1 B. W. C. C. 332.

41

46

out of work, left his wife, and remained | born after his death, and that he would away until his death, some time after-marry the mother before the child was wards, does not prevent her from be- born, is admissible to show both patering "dependent" upon him.40 But a nity and dependency of the child.45 Such deserted wife may, by her conduct, estop children, however, may be shown as a herself from claiming to be a depend- matter of fact not to be dependents. ent.4 An illegitimate child of a workman cannot recover compensation for his death in excess of what he would have been obliged to give under a decree of affiliation and aliment, in the absence of any proof that the deceased had ever contributed to the child's support in excess of what he was required to by the decree.4 47 A woman is not entitled to compensation for the death of a man with whom she had cohabited for a period of pendent" of the man who admits that he is the father, and who had promised to marry the mother. Orrell Colliery Co. v. Schofield [1909] A. C. (Eng.) 433, 78 L. J. K. B. N. S. 677, 100 L. T. N. S. 786, 25 Times L. R. 569, 53 Sol. Jo. 518, aflirming [1908] W. N. 243, 25 Times L. R. 106, 53 Sol. Jo. 117.

A posthumous child may be a "dependent" within the act.42 So, a child en ventre sa mere may be a dependent upon the earnings of its father, although indirectly through its mother.43 Illegitimate children may be dependents within the sense of the act; and this is so even if they are posthumous.44 Evidence of statements by a deceased workman that he was the father of an illegitimate child, 40 Coulthard v. Consett Iron Co. [1905] | 2 K. B. (Eng.) 869, 22 Times L. R. 25, 75 L. J. K. B. N. S. 60, 54 Week. Rep. 139, 93 L. T. N. S. 756.

The fact that a workman who, being out of work in Scotland, went to Ireland, and obtained employment there, had not contributed anything to the support of his wife for several months while he was out of work, during which time she was supported by her father, does not prevent her and a posthumous child from being dependents, where, prior to the time he was out of work, he had supported her, and he had been at work but little over a week when he was killed. Reg. v. Clarke [1906] 2 I. R. (Ir.) 135.

41 As where the wife left her husband more than twenty years before his death, and had supported herself out of her earnings. New Monckton Collieries v. Keeling [1911] A. C. (Eng.) 648, 80 L. J. K. B. N. S. 1205, 105 L. T. N. S. 337, 27 Times L. R. 551, 55 Sol. Jo. 687, 4 B. W. C. C. 332.

Where a woman deliberately, of her own choice, separated from her husband, and a daughter deliberately, of her own choice, went with the mother, and the mother had property of her own, and the husband never contributed toward the maintenance of either of them, they are not dependent upon him within the meaning of the act. Polled v. Great Northern R. Co. (1912) 5 B. W. C. C. (Eng.) 620, former appeal, 5 B. W. C. C. 115.

Where a wife had been deserted for a number of years, and subsequently lived with another man, neither she nor their children can be considered dependents. Lee v. The Bessie [1912] 1 K. B. (Eng.) 83 [1911] W. N. 222, 105 L. T. N. S. 659, 81 L. J. K. B. N. S. 114, 5 B. W. C. C. 55, 12 Asp. Mar. L. Cas. 89, [1912] W. C. Rep. 58, Ann. Cas. 1913E, 477.

42 Williams v. Ocean Coal Co. [1907] 2 K. B. (Eng.) 422, 76 L. J. K. B. N. S. 1073, 97 L. T. N. S. 150, 23 Times L. R. 584.

43 Day v. Markham (1904; C. C.) 39 L. J. (Eng.) 164, 6 W. C. C. 115.

44 A child en ventre sa mere is a "de

In Bowhill Coal Co. v. Neish [1909] S. C. 252, 46 Scot. L. R. 250, where the mother of an illegitimate child had obtained a decree for aliment against the father, but nothing had been actually paid thereon, the court rejected the contention of the defendant that, inasmuch as no actual money of the deceased was proved to have been actually spent upon the child, the child could not be said to be dependent on him.

45 Lloyd v. Powell Duffryn Steam Coal Co. (H. L.) [1914] A. C. (Eng.) 733. 111 L. T. N. S. 388, 83 L. J. K. B. N. S. 1054, 30 Times L. R. 456, 58 Sol. Jo. 514, 7 B. W. C. C. 330, reversing [1913] 2 K. B. 130, 82 L. J. K. B. N. S. 533, 108 L. T. N. S. 201, 29 Times L. R. 291, 57 Sol. Jo. 301, [1913] W. N. 51, [1913] W. C. & Ins. Rep. 355, 6 B. W. C. C. 142.

46 An illegitimate child who at its birth had been taken over by another woman and supported by her and her husband, except for a small sum of money and a little clothing, is not a dependent upon her mother. Briggs v. Mitchell [1911] S. C. 705, 48 Scot. L. R. 606, 4 B. W. C. C. 400.

And the husband of the mother of an illegitimate son, who is not the latter's putative father, is not a "dependent," although the son's earnings were put into a common fund for the support of the family. McLean v. Moss Bay Iron & Steel Co. [1909] 2 K. B. (Eng.) 521, 78 L. J. K. B. N. S. 849, 100 L. T. N. S. 871, 25 Times L. R. 633. This decision was reversed by the House of Lords, but on another point. See note, 36 supra. See the decision of the House of Lords on another phase of this case, note 36, supra. There was no appeal by the husband.

47 Gourlay v. Murray [1908] S. C. 769, 45 Scot. L. R. 577, 1 B. W. C. C. 335.

ten and one-half months, they holding themselves out as man and wife, where the evidence shows that there was some talk of having the marriage ceremony performed, but the man wished to have it postponed until he was in better circumstances, and upon the birth of a posthumous child the mother had it registered as illegitimate.48

A person confined in a prison is not a dependent upon her son.49 So, an inmate of a workhouse to whose support the injured workman does not in fact contribute anything is not a "dependent" within the meaning of the act, although a liability under the poor law to contribute to his support could be enforced against the workman.50 To the extent to which a mother was supported by the guardians of the poor, she is not dependent upon her son.51

It is not necessary that the support be furnished regularly by the workman to render the recipient a dependent.52

In the case of the death of a workman, leaving dependents, the test by which to determine whether they were wholly dependent on his earnings at the time of his death, within the meaning of the act, is whether money which the workman was earning at the time of his death was the sole source to which they could look for maintenance at that time. Accordingly the fact that money came to them on the death of the workman cannot be taken into consideration.53

Upon the question whether alien dependents residing abroad are within the purview of the English act, see the decision of the House of Lords construing the British Columbia act, cited in note 64, infra.

2. In Scotland under the act of 1897.

Under the act of 1897, dependents in Scotland included "such of the persons entitled according to the law of Scotland to sue the employer for damages or solatium in respect of the death of the workman as were wholly or in part dependent upon the earnings of the workman at the time of his death." As the provisions in the earlier act relative to Scotland differ from those applying in England and Ireland, the Scotch decisions under that act are discussed separately.

The mother of a deceased workman, whose parents were in part dependent on him, is not entitled to sue, where the father is alive.54 Grandchildren are entitled to claim compensation for the death of their grandfather, in cases where their father is dead.55 An illegitimate child has no right to sue the employer of his deceased mother.56 A woman living separate from a husband who only contributed a small sum to her support, the rest of her sustenance being obtained from relatives, and occasional employment, may claim compensation for his death.57 But if, as a matter of 48 Fife Coal Co. v. Wallace [1909] S. | Jo. (Eng.) 287, 73 J. P. 104, 53 Sol. Jo. C. 682, 46 Scot. L. R. 727, 2 B. W. C. C. 215, 2 B. W. C. C. 484. 264.

49 A widow who at the date of her son's death was undergoing a sentence of confinement in a state reformatory for inebriates, and during the four years preceding had been in prison with the exception of ten months, and during that period had occasionally earned a little by outdoor work, but was otherwise entirely dependent upon her son, who had contributed 5s. or 68. a week towards her support, was not wholly or partially dependent on her son's earnings at the time of his death, within the meaning of the act. Addie & Sons' Collieries v. Trainer (1904) 7 Sc. Sess. Cas. 5th series (Scot.) 115.

50 Rees v. Penrikyber Nav. Colliery Co. [1903] 1 K. B. (Eng.) 259, 72 L. J. K. B. N. S. 85, 67 J. P. 231, 51 Week. Rep. 247, 87 L. T. N. S. 661, 19 Times L. R. 113, 1 L. G. R. 173.

The wife of a workman who had deserted her, and who did not furnish support for her for seven years, who was obliged to go to the workhouse, is not a dependent. Devlin v. Pelaw Main Collieries (1912) 5 B. W. C. C. (Eng.) 349.

51 Byles v. Pool (1908; C. C.) 126 L. T.

52 Where parents received money from time to time from their deceased son during his lifetime, they may be found to be dependent, although there was no evidence that the money was sent at regular intervals or in fixed amounts. Follis v. Schaake Mach. Works (1908) 13 B. C. 471, 1 B. W. C. C. 442.

53 Pryce v. Penrikyber Nav. Colliery Co. [1902] 1 K. B. (Eng.) 221, 85 L. T. N. S. 477, 18 Times L. R. 54, 71 L. J. K. B. N. S. 192, 66 J. P. 198, 50 Week. Rep. 197.

54 Barrett v. North British R. Co. (1899) 1 Sc. Sess. Cas. 5th series, 1139, 36 Scot. L. R. 874, 7 Scot. L. T. 88.

55 Hanlin v. Melrose (1899) 1 Sc. Sess. Cas. 5th series, 1012, 36 Scot. L. R. 814, 7 Scot. L. T. 67; Cooper v. Fife Coal Co. [1906-07] S. C. (Scot.) 564 (grandchild's mother was dead, and whereabouts of father unknown).

56 Clement v. Bell (1899) 1 Sc. Sess. Cas. 5th series, 924, 36 Scot. L. R. 725, 7 Scot. L. T. 44.

57 Cunningham v. M'Gregor (1901) 3 Sc. Sess. Cas. 5th series, 775, 38 Scot. L. R. 574, 9 Scot. L. T. 36.

Cunningham v. M'Gregor was followed in

The fact that the father of the decedent was assisting a crippled relative does not show, as a matter of law, that he was not "partially dependent" on his son's earnings.60 A parent who has a wage sufficient for his support is not a dependent merely because some member Sneddon v. Addie & Sons' Collieries (1904) | him board, lodging, and clothing, but no 6 Sc. Sess. Cas. 5th series, 992, 41 Scot. L. R. 826, 12 Scot. L. T. 229, where it was held that a woman unable to do anything for her own support is entitled to compensation for the death of her husband, although he had deserted her.