In re Ward

• Decision Date: 30 March 1934
• Citation: 286 Mass. 72,190 N.E. 25
• Parties: WARD'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 72

190 N.E. 25

WARD'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1934.

Appeal from Superior Court, Suffolk County; Whiting, Judge.

Proceeding under the Workmen's Compensation Act by the parents of John F. Ward, deceased employee, for the death of said employee, opposed by the Reliable Cleaning Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurer. From a decree based on the findings and decision of the Industrial Accident Board establishing liability of the insurer, insurer appeals.

Reversed, and case recommitted to the Industrial Accident Board.

G. Gleason, of Boston, for insurer.

F. J. Smith, of Taunton, for claimants.

DONAHUE, Justice.

The employee died as the result of injuries arising out of and in the course of his employment. His father and mother claimed partial dependency and the final decree, based upon the findings and decision of the Industrial Accident Board, establishes a liability of the insurer to pay to the parents a weekly compensation of $2.37 for five hundred weeks, one half of this sum to be paid to the father and one half to the mother. The claimants filed in this court a motion to dismiss the insurer's appeal on the ground that the decree appealed from was entered in the superior court on motion of the insurer. Assuming as they assert that they had no opportunity to present the motion here made to the judge of the superior court and assuming that the attorney of the insurer after the hearing there presented to that judge two forms of decrees, one in favor of the insurer and the other that which was entered, we see nothing in the claimants' contention that the insurer lost its right of appeal. The decree entered in favor of the claimants did not purport to be, nor under the circumstances assumed could it be found to be, a decree to the terms of which the insurer consented or a waiver of the insurer's right to appeal. On appeal the insurer makes only two contentions: (1) That there was no evidence of dependency and (2), if it should be held to the contrary, that there was no evidence on which the amount contributed by the employee toward the support of his parents could be found.

The employee was unmarried and lived in Boston. His father and mother and three adult sisters lived in Taunton. The father had not worked for two years and the mother was in ill health. Neither contributed anything to the expense of running the household. The three sisters were employed and they contributed toward those expenses out of their earnings the aggregate sum of $26 weekly. One of the sisters who since her mother's illness had acted as treasurer of the home testified that the employee also made weekly contributions. The fund thus created was used by her to pay for the rent, food, insurance, electric light, gas, heat, for clothing for the father and mother and for medical expenses. Under this arrangement the father and mother received their food, shelter and clothing. They were dependent upon the family fund for this support. We think that the evidence warranted a finding by the board that the fund in addition to providing board and living quarters for the other members of the household would not have been adequate for the support of the parents if it consisted only of the contributions made by the three sisters. In passing upon a question of this sort a fact finding tribunal like the Industrial Accident Board has the right to use the practical knowledge and everyday experience of its members. Walsh's Case, 227 Mass. 341, 344, 345, 116 N. E. 496, 6 A. L. R. 567;O'Reilly's Case, 265 Mass. 456, 458, 164 N. E. 440;In re Carmossino's Case, 268 Mass. 35, 38, 167 N. E. 350. See Maynard v. Royal Worcester Corset Co., 200 Mass. 1, 8, 85 N. E. 877. If the board found as a fact that the weekly fund must have been larger than $26 in order to provide the parents with the support which they in fact received, and further found that the employee also contributed to the fund, the conclusion that the claimants were partially dependent upon the employee was justified.

In the case of partial dependency upon the earnings of an employee the insure is required to pay ‘a weekly compensation equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents bears to the annual earnings of the deceased at the time of his injury.’ G. L. (Ter. Ed.) c. 152, § 31, lines 40-44. There is in the present case no difficulty with respect to two of the three necessary elements of the statutory formula for computing the weekly compensation, which must be established before that formula can be applied. The insurer does not now question the correctness of the...