In re McDonald

• Decision Date: 04 March 1918
• Citation: 118 N.E. 949,229 Mass. 454
• Parties: In re McDONALD. In re EMPLOYERS' LIABILITY ASSUR. CORP., Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 454

118 N.E. 949

In re McDONALD. In re EMPLOYERS' LIABILITY ASSUR. CORP., Limited.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1918.

Appeal from Superior Court, Suffolk County.

Proceedings by Alice A. McDonald for compensation under the Workmen's Compensation Act for the death of James McDonald, the employé, opposed by Roy H. Beattie, Incorporated, the employer, and the Employers' Liability Assurance Corporation, Limited, the insurer. Compensation was awarded by the Industrial Accident Board, the award affirmed by the superior court, and the insurer appeals. Decree reversed, and case remanded to the Industrial Accident Board for further hearing on the question of actual dependency.

Sawyer, Hardy, Stone & Morrison, of Boston, for appellant.

James J. McCarthy, of Boston, for appellee McDonald.

RUGG, C. J.

The deceased received mortal injury in the course of and arising out of his employment by a subscriber under the Workmen's Compensation Act. St. 1911, c. 751.

His dependents, although aliens, are subjects of a friendly foreign nation and are not excluded from the benefits of the act. Derinza's Case, 118 N. E. 942.

The first point to be decided is whether the finding of the Industrial Accident Board that the wife of the deceased was living with him at the time of his death can be supported. The facts are that the deceased had a wife and five minor children, who lived in a house built by the husband upon land then or later owned by the wife in a small country settlement called Havre Voucher, in Nova Scotia. The only industry there is a lobster factory. The husband had worked in the United States more or less since marriage. He went away every spring and came home in the fall. He sent money home every month, and clothing to the wife and children. The relations of the deceased with his family always were pleasant. He left home in December, 1914, his wife remaining in Nova Scotia. It does not appear precisely where he went, but so far as his wife knew he was either in Rhode Island or Massachusetts. He was a carpenter by trade, and died on January 6, 1916, from injuries received on that date. Seemingly he had stayed away from home on this occasion considerably longer than on his previous trips to this state.

The words of the act as amended are that there shall be a conclusive presumption of the total dependency of ‘a wife upon a husband with whom she lives at the time of his death.’ Part 2, § 7(a). The meaning of these words as used in the act was discussed in Nelson's Case, 217 Mass. 467, 105 N. E. 357. They have been interpreted and applied in Gallagher's Case, 219 Mass. 140, 106 N. E. 558,Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145,Fierro's Case, 223 Mass. 378, 111 N. E. 957, and Gorski's Case, 227 Mass. 456, 116 N. E. 811. What there has been said need not be repeated. A living together with reference to husband and wife imports actual enjoyment of the marriage relation under a common roof. It cannot be stretched to include prolonged absences, even though one of the two may remain at home and the other may expect to return. In reason it seems to us that when the physical separation has been continued for more than a year, as in the case at bar, for reasons of mere business expediency, there is not a living together at the time of the death, even though there is a genuine purpose to resume cohabitation. It would have been simple for the Legislature to have said that the wife should be conclusively presumed to be totally dependent upon the husband unless through her fault she is living apart from him, if that had been its intent. This clause as originally enacted was amended by St. 1914, c. 708, § 3. No such simple change as that then was made, but another of quite different meaning, to the effect that a wife might recover as a total dependent if living apart from the husband for justifiable cause. This does not mean that a wife not living. with her husband by reason of mutual agreement to that end shall be regarded as a total dependent. Veber's Case, 224 Mass. 86, 112 N. E. 485. The words actually used by the Legislature express a purpose to declare total dependency in those cases only where there is no such living with reference to a home as to make it clear that there has been no suspension of the marriage relation, but to leave the question of dependency and its extent to be ascertained as a fact in each case where there has been a physical separation between husband and wife for a considerable period of time for any reason except desertion of the wife by the husband, or a living apart from the husband by the wife for justifiable cause. As applied to citizens of a state of the size of Massachusetts, with its present high standard of marital morality among those defined as employés by the act, there would appear to be ground for a law of that tenor. Actual physical separation for more than a year between a citizen husband and wife might be thought to require an examination of the facts as to dependency. As applied to cases like the present the Legislature may have thought that whether the support of aliens residing in foreign countries should be a burden upon Massachusetts industries ought to depend upon the actual extent of contribution to the support of his wife or family during the life of the employé. That is the meaning which...