Kalcic v. Newport Mining Co.

Brooke, J. (a-fter stating the facts). The order of the board indicates that it was based upon the theory that claimant was wholly dependent upon her deceased husband at the time of the accident. It does [369] not indicate whether the conclusion was reached upon the ground that the wife was living with the husband at the time of the accident, within the meaning of the statute, and therefore conclusively presumed to be totally dependent, or that the total dependency appeared from the proofs in the case. It is the claim of the respondent that in either case there was no support for the conclusion of total dependency. Counsel cite Finn v. Railway, 190 Mich. 112 (155 N. W. 721, L. R. A. 1916C, 1142); Ludwig v. Foundry Co., 194 Mich. 613 (161 N. W. 835); Nelson’s Case, 217 Mass. 467 (105 N. E. 357). Counsel for claimant seek to distinguish the cases cited upon the facts, and cite in support of their position the case of Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97 (142 N. W. 271, L. R. A. 1916A, 366). We are quite convinced that under the circumstances of this case the claimant is not entitled to the benefit of the conclusive presumption of dependency upon the theory that she lived with her husband at the time of his death. Part 2, § 6, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5436). After specifying in said section those who shall be conclusively presumed to be wholly dependent, the act provides: “In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury.” We are of opinion that the facts in this case differ very materially from those in the Ludwig Case relied upon by appellant. There we held there was no evidence of dependency in fact, because the decedent never supported his wife either in Austria-Hungary or in the United States. The contrary appears in the case at bar. Here the decedent during all the years of his absence from his wife and child contributed to [370] their support and in the last year of his life sent to his wife about $80. A fair consideration of her testimony indicates, we think, the fact that she was wholly dependent upon her husband. Her trifling earnings, amounting to about 20 cents a day, two or three times a month, should not be held to change her status in this regard. Upon this point see Petrosino v. Arlington Mills, 2 Mass. W. C. C. 804. No definite rule can be laid down for the determination of the question of dependency. Each case must stand upon its own facts. After a careful consideration of all the evidence offered in the case at bar, we have reached the conclusion that the board was warranted in finding as a fact that the claimant was totally dependent upon her husband at the time of his death. The award is affirmed. Kuhn, C. J., and Stone, Ostrander, Bird,' Moore, Steere, and Fellows, JJ., concurred.