Orouin v. Ellis C. Snodgrass Co.

• Decision Date: 12 December 1941
• Citation: 23 A.2d 631
• Parties: OROUIN v. ELLIS C. SNODGRASS CO. et al.
• Court: Maine Supreme Court

23 A.2d 631

OROUIN

v. ELLIS C. SNODGRASS CO. et al.

Supreme Judicial Court of Maine.

Dec. 12, 1941.

[Copyrighted material omitted.]

Appeal from Superior Court, Cumberland County.

Proceeding under the Workmen's Compensation Act by Ellaine Drouin, by her next friend, claimant, opposed by Ellis C. Snodgrass Company, employer, and another. From a decree affirming a decision of the Industrial Accident Commission dismissing the petition for award, the claimant appeals.

Appeal sustained, decree reversed, and case recommitted.

Before STURGIS, C. J, and THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE JJ.

Jerome G. Daviau and F. Harold Dubord, both of Waterville, for plaintiff.

No attorney representing defendants on appeal.

Warren E. Belanger, of Waterville, for alleged dependent widow.

STURGIS, Chief Justice.

This is an appeal from the decree of a justice of the Superior Court affirming the decision of the Industrial Accident Commission.

It appears from stipulations made at the hearing that Rosaire Drouin formerly of Waterville was injured on the twenty-fifth day of April, 1940, in an accident arising out of and in the course of his employment by the defendant, the Ellis C. Snodgrass Company, and death followed immediately. He was survived by a widow, Yvonne Drouin and a stepson, with both of whom he was living, and by a daughter, Ellaine Drouin, about fourteen years old, who was born of a former deceased wife and had lived since early infancy with her paternal grandparents in Canada. This girl, by her next friend, is the petitioner and appellant in this proceeding.

The Industrial Accident Commission found that the petitioner's mother having died in childbirth, the infant when a few days old was taken by her father's parents to Canada and since that time has been cared for and supported by them in their home. Although the father, the deceased employee, sent small amounts of money annually to his mother and at one time paid for the maintenance of the child for a year in a convent, he never otherwise supported his daughter. The conclusion of the Commission as stated was as follows: "We are of the opinion and so find as a fact that the minor daughter Ellaine Drouin who was not living with her father at the time of his decease and in fact never lived with him, was not actually dependent upon him for support at the time of the accident within the meaning of the provisions of the Workmen's Compensation Act, and that the meager contributions which he sent to the grandmother from time to time were not relied upon for the support of his minor daughter Ellaine, but were in the nature of gifts."

For failure to sustain the burden of proving her dependency the minor's petition for award of compensation was dismissed. The decree of the Commission being against the petitioner, the finding of facts is open to review. Weymouth v. Burnham & Morrill Co., 136 Me. 42-44, 1 A.2d 343; Orff's Case, 122 Me. 114-116, 119 A. 67. On the pleadings the petitioner's dependency is the only issue. Weliska's Case, 125 Me. 147, 131 A. 860.

Under the Workmen's Compensation Act, if death results from a personal injury to an employee received by accident arising out of and in the course of his employment the dependents of the employee wholly dependent upon his earnings for support at the time of his accident are entitled to compensation. Sec. 14, Chap. 55, R.S., as amended by Sec. 6 Chap. 276, P.L. 1939. Children of the deceased employee are conclusively presumed to be wholly dependent upon him for support if within Clause (c), Paragraph VIII, Sec. 2, Chap. 55, R.S., as amended by Sec. 4 Chap. 276, P.L.1939, which in its material parts reads: "(c) A child or children, including adopted and stepchildren, under the age of 18 years, or over said age but physically or mentally incapacitated from earning, upon the parent with whom he is or they are living, or upon whom he is or they are actually dependent in any way at the time of the accident to said parent, there being no surviving dependent parent. * * * In case there is more than one child dependent, the compensation shall be divided equally among them."

The conclusive presumption prescribed by the current statute is as in the original Act. Laws 1919, Chapter 238. When no dependent parent survives a deceased employee, if a child, as defined, is living with the parent the presumption of total dependency prevails. So too if a child is living apart from the parent and the state of the child when the employee met with his accident is that of actual dependency in any way. A child brought within this provision is presumed to be wholly dependent. This interpretation put upon the law in the beginning is still applicable. See Weliska's Case, supra.

The term "dependent" as used in the Workmen's Compensation Act has a well known and accepted meaning. The mere reception of assistance in the form of contributions or otherwise does not of itself create dependency. The controlling test is, Was the assistance relied upon by the claimant for his or her reasonable means of support and suitable to his or her position in life? Dumond's Case, 125 Me. 313, 133 A. 736; Henry's Case, 124 Me. 104, 126 A. 286; Weliska's Case, supra. And "actually dependent" means "dependent in fact". Muzik v. Erie R. Co., 85 N.J. L. 129, 89 A. 248, 249; Miller v. Public Service Ry. Co., 84 N.J.L. 174, 85 A. 1030; 2 Words and Phrases, Perm.Ed, 240; 28 R.C.L. 770. In the case at bar the burden of proving actual dependency in any way upon the parent at the time of his accident rested upon the...