MacDonald v. Employers' Liab. Assur. Corp.

• Decision Date: 15 March 1921
• Citation: 112 A. 719
• Parties: MacDONALD v. EMPLOYERS' LIABILITY ASSUR. CORPORATION et al.
• Court: Maine Supreme Court

112 A. 719

MacDONALD

v. EMPLOYERS' LIABILITY ASSUR. CORPORATION et al.

Supreme Judicial Court of Maine.

March 15, 1921.

Appeal from Supreme Judicial Court, Cumberland County, at Law.

Proceeding under the Workmen's Compensation Act by George MacDonald to recover compensation for tbe death of his minor son, Walter MacDonald, employee, opposed by the Employers' Liability Assurance Corporation and the Pocahontas Coal & Fuel Company. From a decision of the chairman of the Industrial Accident Commission confirmed by a sitting justice of the Supreme Judicial Court awarding compensation, the employer and insurer appeal. Appeal sustained, and decree modified by reducing the amount of the compensation.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, and DEASY, JJ.

Robert Payson, of Portland, for appellants.

Samuel L. Bates, of Portland, for appellee.

SPEAR, J. This is an appeal from the decision of the chairman of the Industrial Accident Commission confirmed by a sitting justice of the Supreme Judicial Court in accordance with the provisions of R., S. c. 50, by which decision compensation at the rate of $9.60 per week for a period of 300 weeks was awarded the claimant for the death of his minor son, Walter MacDonald.

Walter was injured in the course of his employment on February 24, 1920, and died as a result of his Injuries on March 8th following.

It may be well, in view of the issues raised in this case, to briefly review the method and effect of the procedure in bringing these accident cases before the law court.

Seel ion 34, which prescribes the procedure provides: First, that the justice of the Supreme Judicial Court, sitting as in chancery, shall render a decree in accordance with the finding of the Commissioner and notify all parties. This decree is merely perfunctory. The justice rendering it passes neither upon the facts nor the law. The effect of the decree and all proceedings in relation to it are to be the same as though rendered in a suit in equity, duly heard and determined by the court, except there shall be no appeal upon the questions of fact found by the Commission or its chairman, nor if the decree is based upon a memorandum of agreement approved by the Commission.

Notwithstanding there shall be no appeal upon the questions of fact found by the Commission or its chairman, and that his decision, in the absence of fraud, upon all questions of fact shall be final, our court has nevertheless held that the finding of the Commission or its chairman upon questions of fact is reviewable upon the appeal to the law court to the extent of ascertaining whether or not there is any palpable evidence upon which the decision can be sustained. Mailman's Case, 118 Me. 172, 106 Atl. 606; Westman's Case, 118 Me. 133, 106 Atl. 532.

While the statute was intended by the Legislature to submit the final decision of all questions of fact to the Commission or its chairman, it is. nevertheless obvious that it equally intended to leave all questions of law raised by the pleadings subject to the revision of the law court, as it is therein provided as follows:

"Upon any appeal therefrom, the procedure shall be the same as appeals in equity procedure, and the law court may, after consideration, reverse or modify any decree made by the justice based upon erroneous ruling or finding of law."

The present case comes up on the three following acts and rulings of the chairman by reason of which the respondents claim they have been aggrieved:

(1) The chairman, upon his own motion and against objection, continued the hearing of the case after the evidence was in and both parties had rested from April 15, 1920, to April 28, 1920. He therefore failed to observe the mandate of the statute, and his decision based on both hearings is void.

(2) The chairman failed to note the generally recognized meaning of the word "dependent" in defining the claimant "partially dependent."

(3) The chairman failed to take into consideration, in fixing the amount of compensation, the money paid over to claimant by the deceased for the purchase and maintenance of an automobile, which claimant admits was not a necessity. He also failed to take into consideration an excessive charge for repairs on claimant's house.

The respondent claims that the continuance at the volition of the chairman was in contravention of the command of the statute requiring "a speedy, efficient, and inexpensive" method of procedure.

But we are of the opinion that what constitutes "a speedy, efficient, and inexpensive procedure" under the statute is a question of fact addressed to the discretion of the chairman. It should be only upon the conclusion that his discretion has been abused that the appellate court should be called upon to exercise its power of review.

We discover nothing under the statute, which removes the present case from the application of the rule laid down in Atkins v. Field, 89 Me. 281, 36 Atl. 375, 56 Am. St. Rep. 424.

The first objection must be overruled.

The second objection regarding the meaning of "dependency" presents a mixed question of law and fact. Under this objection we come to the question as to who are to be adjudicated dependents within the meaning of the Workmen's Compensation Act. We find the definition as to certain persons in section 1, par. 8, to be as follows:

"'Dependents' shall mean members of the employee's family or next of kin, who are wholly or partly dependent upon the earnings of the employee for support at the time of the injury."

Then the paragraph proceeds to specify those classes which shall be presumed to be wholly dependent for support upon a deceased employee. But the claimant's case does not come within either of these specifications.

After defining the status of those who are conclusively presumed to he wholly dependent, the statute then proceeds further and provides for those who may be partially dependent, and how entire or partial dependency may be ascertained:

"In all cases questions of entire or partial dependency shall be determined in accordance with the fact, as the fact may have been at the time of the injury"

—and then proceeds to prescribe in what proportions the compensation shall be divided in case of partial dependency.

Excepting the cases enumerated in the statute, where "dependency" is defined as conclusive a state of dependency must first be found as a condition precedent to holding the respondent liable for the payment of any sum whatever for the support of the claimant; for, if there is no dependency, there is no support contemplated by the statute. Dependency having been found, the statute then proceeds to prescribe a method of determining the degree, as the dependency may be total or partial.

This interpretation is confirmed by the language of section 12, which provides as follows:

"If the employee leaves dependents only partly dependent upon his earnings for support at the time of his injury, the employer shall pay such dependents for a period of three hundred weeks from the date of the injury, a weekly compensation equal to the same proportion of the weekly payments herein provided for the benefit of persons wholly dependent as the amount contributed annually by the employee to such partial dependents bears to the annual earnings of the deceased at the time of injury."

From this quotation it will be seen that the ratio of the computation herein prescribed is predicated upon the premise of "the benefit of persons wholly dependent."

Accordingly "wholly dependent" must first be defined and then the degree established in case of partial dependency. Dependent is defined as follows:

Webster's Dictionary:

"Relying on, or subject to something for support: not able to exist or sustain itself; not self-sustaining."

Worcester's Dictionary:

"Having dependence; deriving support from; relying upon for means of subsistence."

1 Words and Phrases, Second Series, 1299:

"For a parent to be 'Dependent' on a child for support within Rem. & Bal. Code, § 194, giving dependent parents a right of action for wrongful death of an adult chlid, it must appear that there is a substantial degree of dependency, need, on the part of the parent, and a recognition of it on the part of the child, and an occasional contribution from a son to a parent does not establish a condition of dependency. Bortle v. Northern Pacific Ry. Co., 111 Pac. 788, 789, 60 Wash. 552, Ann. Cas. 1912B, 731. But the statute will not be so strictly construed as to say that it means wholly dependent or that the parent must have no means of support or livelihood other than the deceased. Neither a father, 46 years old, who has successfully carried on a teaming business, is practically out of debt, and who could probably find employment, except for a depression in business condition, nor his wife, are 'dependent' within the statute. Kanton v. Kelley, 118 Pac. 890, 891, 65 Wash. 614, citing Bortle v. Northern Pac. Ry. Co., Ill Pac. 788, 60 Wash. 552, Ann. Cas. 1912B, 731."

The chairman of the Commission, however, with reference as to what constituted dependency, ruled as...