In re Ferriter

• Decision Date: 27 November 1929
• Citation: 168 N.E. 747,269 Mass. 267
• Parties: FERRITER'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 267

168 N.E. 747

FERRITER'S CASE.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 27, 1929.

Appeal from Superior Court, Hampden County; Qua, Judge.

Proceeding under the Workmen's Compensation Act by James T. Ferriter. From a decree dismissing the claim, claimant appeals. Affirmed.

E. W. Sawyer, of Boston, and J. J. Connors, of Roslindale, for insurer.

Eugene A. Lynch and Cornelius J. Moriarty, both of Holyoke, for claimant.

FIELD, J.

This is a proceeding under the Workmen's Compensation Act. G. L. c. 152. The claimant, James J. Ferriter, is the son of James T. Ferriter, the employee, who received an injury on August 14, 1928, in the course of his employment, from which he died. The sole question for determination is whether at the time of the injury the claimant was dependent upon his father within the meaning of the statute and therefore entitled to compensation thereunder. The Industrial Accident Board found ‘as a fact that there was not a condition of dependency in this case.’ In the superior court a decree was entered dismissing the claim. The claimant appealed.

The existence or nonexistence of a condition of dependency was a question of fact for the Industrial Accident Board (Herrick's Case, 217 Mass. 111, 104 N. E. 432;McMahon's Case, 229 Mass. 48, 50, 118 N. E. 189), the burden of proving dependency being on the claimant. Fierro's Case, 223 Mass. 378, 380, 111 N. E. 957.

The case was heard on the testimony of the claimant which was found to be true. The findings may be summarized as follows: The employee lived in Holyoke. The claimant, who was twenty-two years old at the time of the accident, lived with his father. ‘Physically and mentally claimant was all right.’ ‘He went through high school and part of a business school in Holyoke,’ and finished school in 1924. In the early part of 1926 he worked six weeks in Holyoke and was laid off, and ‘that was all the work he did from the time he got through high school until his father died.’ His mother died in 1913. He has an unmarried older sister who with the exception of a year after the mother's death lived with an aunt in Springfield. The claimant lived with his father all the time after the mother's death and the father paid for the claimant's board and room and bought all of his clothes for a year before the accident. The claimant had no other means of support at that time and no money except what his father gave him. ‘He attempted to find work in Holyoke from time to time but was unable to find anything that was satisfactory to him. He could have gotten some work but it was not what he liked.’ The claimant ‘wanted to leave the city to find something to do because he could not find anything in Holyoke and his father urged him to remain with him for sentimental reasons and agreed to pay his board and room and furnished him with clothes in return for his presence with him.’ ‘His father almost insisted on it.’ The claimant is working now, in Hartford, Connecticut.

Since the claimant, though a child of the employee, was over eighteen years of age and was not ‘physically or mentally incapacitated from earning’ he was not ‘conclusively presumed’ to be dependent upon his father for support. G. L. c. 152, § 32(c). Whether he, as a member of the family, or next of kin of his father, was a ‘dependent,’ within the meaning of the statutory definition of dependency, depends upon whether as a matter of fact he was ‘wholly or party dependent upon the earnings of the employee for support at the time of the injury.’ G. L. c. 152, § 1(3); Id. § 32.

At the time of the injury the claimant relied wholly on his father for support and all his support came from his father. As it appears from the report of the single member that no question ‘other than that of dependency’ is raised we assume that this support came from the father's ‘earnings' as distinguished from investments. See Derinza's Case, 229 Mass. 435, 446, 118 N. E. 942. These facts alone, however, do not as a matter of law require the conclusion that the claimant was ‘dependent’ within the meaning of the statute. Though proof that a person could not have subsisted without aid from the employee is not essential to establish the existence of a relation of dependency (McMahon's Case, supra), dependency implies some degree of need. This is a clear inference from the cases in which the financial ability or the ability to work of the alleged dependents has been taken into consideration as material. See Buckley's Case, 218 Mass. 354, 356, 105 N. E. 979, Ann. Cas. 1916B, 474;Caliendo's Case, 219 Mass. 498, 107 N. E. 370; Carter's Case, 221 Mass. 105, 107, 108, 108 N. E. 911; Kenney's Case, 222 Mass. 401, 404, 111 N. E. 47;Freeman's Case, 233 Mass. 287, 290, 123 N. E. 845. See, also, cases under somewhat similar statutes. Daly v. New Jersey Steel & Iron Co., 155 Mass. 1, 5, 29 N. E. 507;Hodnett v. Boston & Albany Railroad Co., 156 Mass. 86, 30 N. E. 224;Welch v. New York, New Haven & Hartford Railroad Co., 176 Mass. 393, 401, 57 N. E. 668;Boyle v. Columbian Fire Proofing Co., 182 Mass. 93, 101, 64 N. E. 726;Mehan v. Lowell Electric Light Corp., 192 Mass. 53, 61, 63, 78 N. E. 385;Morena v. Winston, 194 Mass. 378, 383, 80 N. E. 473. And see cases in other jurisdictions. Gherardi v. Connecticut Co., 92 Conn. 454, 103 A. 668;McDonald v. Great Atlantic & Pacific Tea Co., 95 Conn. 160, 166, 111 A. 65;Benjamin F. Shaw Co. v. Palmatory, 7 Boyce (30 Del.) 197, 202,105 A. 417;Serrano v. Cudahy Packing Co., 194 Iowa, 689, 190 N. W. 132; MacDonald v. Pocahontas Coal & Fuel Co., 120 Me. 52, 57, 112 A. 719;Dazy v. Apponaug Co., 36 R. I. 81, 89 A. 160;Hancock v. Industrial Commission, 58 Utah, 192, 198 P. 169;Jackson v. Industrial Commission of Wisconsin, 164 Wis. 94, 159 N. W. 561;Bortle v. Northern Pacific Railway Co., 60 Wash. 552, 111 P. 788, Ann. Cas. 1912B, 731. It follows that a person who is within the class of possible dependents and not within the class of those ‘conclusively presumed’ to be dependents (see as to this class of persons Bott's Case, 230 Mass. 152, 119 N. E. 755;Cronin's Case, 234 Mass. 5, 124 N. E. 669) cannot refrain from the use of resources, including the ability to work, reasonably available to him for his support under all the circumstances of the case and thereby make himself ‘dependent’ upon the person who...