Rubino's Case

• Decision Date: 28 November 1951
• Citation: 328 Mass. 129,102 N.E.2d 64
• Parties: RUBINO'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 64

102 N.E.2d 64

328 Mass. 129

RUBINO'S CASE.

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 2, 1951.

Decided Nov. 28, 1951.

H. Hershfield, Lawrence, for claimant.

E. Z. Dymsza, Boston, E. C. McCabe, Boston, for insurer.

Before QUA, C. J., and WILKINS, SPALDING and WILLIAMS, JJ.

WILKINS, Justice.

The employee appeals from a decree dismissing his claim for dependency compensation. He was injured on May 3, 1949, and has been receiving weekly total incapacity compensation. The question concerns the dependency of a wife and three children under the age of eighteen, who are in Italy, residing in a house owned by her. He emigrated to this country in January, 1949. The reviewing board adopted the findings and decision of the single member.

General Laws (Ter.Ed.) c. 152, § 35A, inserted by St. 1945, c. 717, as appearing in St. 1946, c. 553, provides: 'Where the injured employee has persons conclusively presumed to be dependent upon him or in fact so dependent, the sum of two dollars and fifty cents shall be added to the weekly compensation payable under sections thirty-four, thirty-four A and thirty-five, for each person wholly dependent on the employee * * *. For the purposes of this section the following persons shall be conclusively presumed to be wholly dependent for support upon an employee:

'(a) A wife upon a husband with whom she lives at the time of his injury. * * *

'(c) Children under the age of eighteen years if living with the employee at the time of his injury, or, if the employee is bound or ordered by law, decree or order of court, or by any other lawful requirement, to support such children, although living apart from them. * * *

'In all other cases questions of dependency shall be determined in accordance with the fact as the fact may be at the time of the injury. * * *'

In the report of the single member the following appears: 'The employee states that during the months of February and March he worked for one Grasso, a small contractor, and he received for work done during that period $150 to $160. In April, 1949, he went to work for the Rex Macaroni Products Company, Inc., and worked for that concern until he was injured. He further states that he sent money to his wife four or five times, totaling $60 or $70. However, he did not present any documentary evidence of such payments, such as cancelled checks or receipts of postal money orders to support his testimony. I am not satisfied from the evidence that the employee has sustained the burden which is his that his wife and three children, living in Italy, were wholly dependent for support on contributions from his earnings since his coming to this country, and I so find as a fact. I am therefore constrained to deny his claim for dependency compensation.'

The use of 'therefore' shows that the denial of dependency compensation was based upon the finding that the employee had not sustained the burden of proof as to the fact of dependency. Mahoney v. C. & R. Construction Co., 311 Mass. 558, 42 N.E.2d 255.

1. So far as the wife is concerned, there was no error. Since she was not living with her husband at the time of the injury, Gorski's Case, 227 Mass. 456, 458, 116 N.E. 811, her dependency was not conclusively presumed under section 35A(a), but was a question of fact. The evidence did not require a finding that she was receiving support from the employee at the time of the injury. The employee's testimony as to payments could have been disbelieved. The finding was, in substance, that the wife had received no support from the employee since his arrival in this country. That was sufficient basis for a conclusion that she was not a dependent. Di Clavio's Case, 293 Mass. 259, 263, 199 N.E. 732.

The employee seeks to draw a distinction between section 35A and section 31 in that the latter section provides, in case of death of the employee, that payments are to be made to certain persons 'wholly dependent upon his earnings for support at the time of [his] injury'. See Derinza's Case, 229 Mass. 435, 445-447, 118 N.E. 942. It is argued that the wording 'earnings' does not appear in section 35A. But that word also does not appear in section 32, which also relates to who are...