In re Musgrave
| Decision Date | 06 January 1933 |
| Citation | 281 Mass. 416,183 N.E. 749 |
| Parties | MUSGRAVE'S CASE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; Franklin T. Hammond, Judge.
Proceeding under the Workmen's Compensation Law by the mother of Richard Musgrave for his death, opposed by Perryville Woolen Mills, employer, and the American Mutual Liability Insurance Company, insurance carrier. From a decree awarding claimant compensation, the insurance carrier appeals.
Reversed and rendered.
G. Gleason, of Boston, for insurer.
T. Leboeuf, of Webster, for claimant.
This is a workmen's compensation case. G. L. (Ter. Ed.) c. 152. The claimant is the mother of the deceased employee. While working for the insured on October 30, 1928, the employee received an injury arising out of and in the course of his employment which resulted in his death on that date. A decree was entered in the Superior Court that the claimant ‘was partially dependent for support upon the earnings of the employee at the time of his injury, and is entitled to the payment of compensation at the rate of six dollars and eighty cents ($6.80) a week dating from January 9, 1931, and continuing for the balance of the period of five hundred (500) weeks from October 30, 1928, subject to the provisions of the act.’ From this decree the insurer appealed.
Previously the father of the deceased employee had claimed to be dependent upon the earnings of the employee for support. On this claim the single member of the Industrial Accident Board made, among others, the following findings and rulings: The employee was nineteen years old. He ‘turned into his mother, as treasurer of the family, all his earnings while working for’ the insured; ‘these earnings were mingled by the mother with the money received by her from her husband for the support of the members of the family, including besides the employee, the father, mother and three other children.’ The ‘fact that the father was able to support his family without assistance from * * * [the employee] before the latter began to work for the * * * [insured] does not make the father any the less partially dependent upon * * * [the employee's] earnings, to the extent of his contribution to the family fund, after * * * [the employee] actually entered employment.’ The employee's father was ‘partially dependent for support’ on the employee's earnings and ‘as head of the family * * * entitled to partial dependency compensation.’ The reviewing board affirmed and adopted the findings and decision of the single member ‘under which partial dependency compensation is awarded to the dependent,’ the father of the employee, ‘at the rate of $6.80 per week, dating from October 30, 1928, and continuing, for a period of 500 weeks, subject to the provisions of the Act.’ This decision, so far as appears, was never presented to the Superior Court.
In respect to the present claim of the mother for defendency compensation the single member found and ruled that as a result of the hearing on the father's claim ‘it was found that the father, as head of the family of which the deceased employee was a member, was entitled to partial compensation,’ that ‘the father died January 29, 1931, and received weekly payments up to January 27, 1931,’ that the mother testified that during the father's lifetime ‘he always turned the compensation check over to her; that she cashed it and used it for the support of the family; that she has two children, a daughter * * * aged twelve, and a son * * * aged sixteen; and, that they live with her,’ that at the hearing on his claim the ‘father testified flatly that he ‘could always earn a living’ but the earnings of the deceased employee * * * were needed in part for the support of the family,' ‘that the payment to the father was not made to him as a dependent but as the treasurer of a family to some extent dependent upon the deceased employee,’ that ‘this family has continued to be partially dependent to the same extent as before the death of said father,’ and that payments of $6.80 a week should be continued from the date of the death of the father and paid to the mother ‘as treasurer of said partially dependent family.’ The reviewing board affirmed and adopted the findings and decision of the single member and made a further finding in the terms later set forth in the decree of the Superior Court already quoted.
[1] By the first award the entire partial dependency compensation, as appears from findings not here recited, was awarded. This award must be regarded as made to the father individually and not to the family as a group, in spite of the findings that the employee's earnings were turned over to his mother ‘as treasurer of the family’ and that the father was entitled to compensation ‘as head of the family.’ Pagnoni's Case, 230 Mass. 9, 10, 118 N. E. 948, is not an authority to the contrary. The statute contains no provision for awarding partial compensation to dependents as a group, but provides expressly that if there is ‘more than one person partly dependent, the death benefit shall be divided among them according to the relative extent of their dependency.’ G. L. (Ter. Ed.) c. 152, § 32. See, also, section 31. No such division was made in the present case. Furthermore dependency when, as here, not conclusively presumed must ‘be determined in accordance with the fact as the fact may be at the time of the injury’ (section 32; Gleason's Case, 269 Mass. 583, 169 N. E. 409), and at that time the other children were not the employee's dependents (section 1, cl. 3) and could not properly have been awarded compensation. They were not his next of kin, since his parents survived him (Cowden's Case, 225 Mass. 66, 67, 113 N. E. 1036), and it could not have been found that they were members of a family of which he was the head. Mahoney's Case, 228 Mass. 555, 117 N. E. 794. It follows that the interpretation of the award to the father made by the board in its decision upon the mother's claim was not justified.
The question for our determination is whether on the evidence and in view of the previous award of compensation to the father as the employee's sole dependent the present award to the mother was warranted.
[2] For reasons indicated in connection with the father's claim the award of compensation to the mother must be sustained, if at all, as an award to her individually and not to the family as a group. The award of the reviewing board is to be so interpreted. So far as the findings of the single member, adopted by the board, that the family was dependent is inconsistent with the specific finding of the board that the claimant ‘was in fact partially dependent for support upon the earnings of the employee’ it must be disregarded. This finding of the single member furnishes no basis for an award of compensation.
[3][4] The question of the dependency of the claimant for her support upon the earnings of the employee is to be determined as of the time of his injury. Section 32. Since the employee was then over eighteen years of age neither parent was conclusively presumed to be wholly...
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