Kenney v. City of Boston

• Decision Date: 10 January 1916
• Citation: 111 N.E. 47,222 Mass. 401
• Parties: KENNEY v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 401

111 N.E. 47

KENNEY

v.CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 10, 1916.

Appeal from Superior Court, Suffolk County.

Proceeding, under the act to provide compensation for certain public employés for injuries sustained in the course of their employment, by Anne U. Kenney, sister, as dependent of Thomas H. Kenney, to obtain compensation for his death while a public employé, opposed by the City of Boston, employer. Compensation was awarded, and the employer appeals. Decree reversed.

Walter J. O'Malley, of Boston, Ass't Corp. Counsel, for appellant.

McDonald & Graham, of Boston, for appellee.

DE COURCY, J.

The city does not contest the findings of the Industrial Accident Board, that Thomas H. Kenney was a ‘workman’ in its employment, within the scope of St. 1913, c. 807 (which provides compensation for certain public employés), and that the personal injury which resulted in his death arose out of and in the course of his employment. The controversy relates only to the finding and decision of the board that the claimant Anne U. Kenney, a sister of the employé, was wholly dependent upon his earnings for support at the time of his injury.

[1] Although there is no appeal from the finding of the board upon questions of fact (Diaz's Case, 217 Mass. 36, 104 N. E. 384; Bentley's Case, 217 Mass. 79, 104 N. E. 432), nevertheless where all the evidence is reported, there is open for revision the question of law, whether there was any evidence to support the findings. There also is necessarily involved the inquiry whether the board, in applying the law to the facts, correctly interpreted the terms ‘wholly’ and ‘partially dependent,’ as used in the Workmen's Compensation Act. Herrick's Case, 217 Mass. 111, 104 N. E. 432; Sponatski's Case, 220 Mass. 526, 108 N. E. 466.

[2] On the issue of the claimant's dependency upon her brother, Thomas H. Kenney, the board were justified in finding the following facts: Fifteen years before his death, and under his promise to support her, the claimant was induced to remain at home, and take charge of the household. The family then comprised their invalid mother (who died later), their father (who died in December, 1910), a younger sister, Jane E. Kenney, the brother, Thomas H. Kenney (who died January 15, 1915), and the claimant. The sister Jane paid $15 a month for her board. Thomas furnished all other money needed to support the household, every month giving directly to the claimant $20 in money, and $3 a week, as rental received from a house owned by the three in common. He also paid the bills for rent, gas, coal and milk. In addition, he paid for all her clothes, and gave her whatever she needed. There was no agreement in regard to wages.

St. 1913, c. 807, adopted the provisions for compensation set forth in the Workmen's Compensation Act. Accordingly in case of fatal injury to the workmen employed by the city, a certain weekly payment for a specified period is to be made to ‘the dependents of the employé, wholly dependent upon his earnings for support at the time of the injury.’ If the employé leaves ‘dependents only partially dependent upon his earnings for support at the time of his injury’ they are to receive a smaller payment. St. 1911, c. 751, as amended by St. 1914, c. 708, § 2. A husband, wife or child under certain circumstances is ‘conclusively presumed to be wholly dependent for support upon a deceased employé; and in all other cases questions of dependency, in whole or in part, are to be determined in accordance with the fact as the fact may be at the time of the injury.’ Part 2, § 6, of the act, as amended by St. 1914, c. 708, § 2. The word ‘dependents,’ as used in the act, is therein defined as meaning ‘members of the employé's family or next of kin who were wholly or partly dependent upon the earnings of the employé for support at the time of the injury.’ St. 1911, c. 751, part 5, § 2. It is the contention of the employer that, on the facts found here, there is no warrant for a finding that the claimant was a ‘dependent,’ within the meaning of that word as used in the act.

It has been pointed out that this statute is based on the theory of compensation. See Cripps' Case, 216 Mass. 586, 104 N. E. 565, Ann. Cas. 1915B, 828; Nelson's Case, 217 Mass. 467, 105 N. E. 357. In the case at bar the earnings of the employé were the chief source to which the claimant looked for her maintenance and support. Apparently his regular and substantial payments were given by him and received by her, not as a gratuity, but in recognition of a moral if not a legal obligation to support her, in...