WHO ARE "DEPENDENTS" WITHIN THE MEANING OF THE WORKMEN'S COMPENSATION LAWS.

Statutory Provisions.-For the purposes of this article the provisions of the English Workmen's Compensation act1 and of the Workmen's Compensation statute of Wisconsin2 relative to the subject under discussion are given here, because the terms of these statutes include all provisions usually included in the statutes on the subject. In considering the following discussion reference must be had to the provisions of the statutes here given.

The provisions of the English act are as follows: "Dependents' means such of the members of the workman's family as were wholly or in part dependent upon the earnings of the workman at the time of his death, or would but for the incapacity due to the accident have been so dependent, and where the workman, being the parent or grandparent of an illegitimate child, leaves such a child so dependent upon his earnings, or, being an illegitimate child, leaves a parent or grandparent so dependent upon his earnings, shall include such an illegitimate child and parent or grandparent respectively."

"Member of a family' means wife or husband, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother, half-sister."

The Wisconsin statute provides: "The following shall be conclusively presumed to be solely and wholly dependent for support upon a deceased employe:

"A wife upon a husband with whom she is living at the time of his death.

"A husband upon a wife with whom he is living at the time of her death.

"A child or children under the age of eighteen years (or over said age, but

physically or mentally incapacitated. from earning), upon the parent with whom he or they are living at the time of the death of such parent, there being no surviving dependent parent. In case there is more than one child thus dependent, the death benefit shall be divided between such dependents in such proportion as may be determined by the commission after considering the ages of such dependents and other facts bearing on such dependency.

"In all other cases questions of entire or partial dependency shall be determined in accordance with the fact, as the fact. may be at the time of the accident to the employe; and in such other cases, if there is more than one person wholly dependent, the death benefit shall be divided equally among them, and persons partially dependent, if any, shall receive no part thereof; and if there is more than one person partially dependent, the death benefit shall be divided among them according to the relative extent of their dependency.

"No person shall be considered a dependent unless a member of the family of the deceased employe, or one who bears to him the relation of husband or widow, or lineal descendant, or ancestor, or brother, or sister.

"Questions as to who constitutes dependents and the extent of their dependency shall be determined as of the date of the accident to the employe, and their right to any death benefit shall become fixed as of such time, irrespective of any subsequent change in conditions. * * No person shall be excluded as a dependent who is a non-resident alien."

English View of Who Are Dependents in Fact. The early English cases took the stand that a person was in fact dependent upon another only when he was dependent for the necessaries of life. In the case of Simmons v. White3, Romer L. J..

(3) 80 L. T. Rep. 344 (1899), 1 Q. B. 1005. 15 T. L. Ren 263, 68 L. J. Q. B. 507, 47 Wkly. Rep. 513, 1 W. C. Cas. 89.

said: “I think that the 'dependents' who | are entitled to claim compensation under the act must be dependents in the proper sense of the word, and not merely persons who derive a benefit from the earnings of the deceased. I also think that a 'dependent' must be a person who is dependent upon the deceased for the ordinary necessaries of life having regard to the class and position of the parties."

In the same case, Collins, L. J., said, quoting from Senhouse & Emery on the Workmen's Compensation Act: "By the expression 'wholly or in part dependent' a wide latitude is given to the arbitrator. * * * 'Dependent' probably means dependent for the ordinary necessities of life for a person of that class and position in life. Thus the financial and social position of the recipient of compensation would have to be taken into account. That which would make one person dependent upon another would in another case merely cause the one to receive benefit from the other."

This view has since been very materially changed; it being held that no standard of living can be considered. Consequently the fact that a person may be able bodied and well able to make a living for himself and family, so far as necessaries are concerned, does not prevent his being dependent upon another.

A father claimed compensation for the death of his son, on the ground that

was partially dependent upon his earnings. The County Court Judge held that he was not a dependent and was not entitled to compensation because he was able to maintain himself and his family in his position of life without the assistance of the earnings of his son. On appeal, however, this finding was declared to be erroneous, and it was then held that the applicant was entitled to compensation.*

(4) Howells v. Vivian, 85 L. T. Rep. 529. 18 T. L. Rep. 36, 50 Wkly. Rep. 163, 4 W. C. Cas. 106.

According to this view, it would haye no bearing on the question of the dependency of the father in such a case, that the family, including the father, are spending the entire earnings of all the members of the family in living far in excess of what their means and station in life justify. On the other hand, if the father was frugal and was training his son to be likewise and allowed him to save his earnings above the reasonable cost of his board and lodging for his own account, such a father could recover nothing as compensation for the death of his son, and rightly so, because he is in no sense dependent upon the son's earnings. In neither of these instances, it is submitted, should the father be cosidered a dependent. In the latter instance because he is not, in fact, dependent, and in the former instance, because he is not dependent for the necessaries of life. In the former instance the father is dependent only for luxuries; in the latter instance the father is not dependent because he does without luxuries. The courts in this way put a premium on improvidence and extravagance.

In the case last cited, the County Court. Judge seems to have adopted the more reasonable view. He said: "The facts I find as proved were that the applicant is an able bodied workingman, earning the usual and full wages of a person in his position in life, and who has brought up and maintained himself and his family upon those wages, and at the time of the death of his son had no one except himself and his wife to maintain. *** I take it a 'dependent' or a 'part dependent' is a person. who from some cause is unable to support himself and his family without assistance from some other source, and on which he may be said then to be dependent. Now, can I say in this case that this able bodied workman, earning about one pound thirteen shillings nine pence a week, with only himself and wife to maintain, is unable to support himself

without assistance? I cannot find that the applicant was dependent, so I must find in fact that he was not dependent on his son."

It is thought that dependency is something more than the receipt of money from another which is spent for the benefit of the recipient.

It is now very well settled in England, however, that no standard of living is to be considered in determining the fact of dependency. In the Davies case, just cited, the Lord Chancellor said, in referring to this question: "I decline to assume that the Legislature has contemplated a particular standard-I am not quite certain what it means, but I am quite certain that no human intellect would be able to ascertain exactly what the standard was, if one had to deal with such a question.'

It might be suggested that this "standard of living" could be found in the same manner as any fact is found, and that generally in finding facts the truth is only approximated. Such a fact could as easily be found as the fact of what are necessaries of life for a wife who is living

apart from her husband on account of his fault. Or it might be found in the same manner the negligence of an employe is estimated in comparison with the negligence of the employer and the damages due to an injury to the employe on account of the combined negligence of both, are reduced in the same proportion that the employe's negligence bears to the negligence of the employer.

The doctrine, as laid down in the Davies case, supra, that holds that a father is part dependent on the earnings of a son who contributes to the support of the family which the father is bound. by law to maintain, seems perfectly

(5) Main Colliery Co. v. Davies, 80 L. T. Rep. 674 (1900), A. C. 358, 16 T. L. Rep. 460. 1 W. C. Cas. 92; Howells v. Vivian, 85 L. T. Rep. 529. 18 T. L. Rep. 36, 50 Wkly. Rep. 163. 4 W. C. Cas. 106: French v. Underwood, 19 T. L. Rep. 416, 5 W. C. Cas. 119.

sound. The rule laid down in the same case, and which is the present law on the subject in England, was stated by the Lord Chancellor. He said: "What the family was in fact earning, what the family was in fact spending, for the purposes of its maintenance as a family, seems to me to be the only thing which the County Court Judge could properly regard."

Woman as Dependent on Husband and Children.-A woman may be dependent on her husband or her children, or on her husband and her children at the same time, the question being one of fact. A woman who lives with the members of her family cannot claim to be dependent upon the earnings of her son as distinct from the earnings of her husband, although the earnings of the son have been put into a common fund from which the family were maintained, but the earnings of the son had not been appropriated to the benefit of the mother as distinct from her husband."

The widow and children of a workman have been held to be no less wholly dependent upon the workman because the latter had been enabled through the re

ceipt by him, either directly or through his wife as his agent, of money from wage-earning sons or of money coming to him through other channels, to augment the fund out of which he has been legally bound to maintain, and had maintained, his household."

It was held that it is no objection to this decision that, if in the father's lifetime one of these three wage-earning sons had died under circumstances within the purview of the Compensation act, the father, who was in fact at the time of such son's death receiving help from him. in the shape of the son's weekly contri

(6) McLean v. Moss Bay Iron, Etc., Co., 100 L. T. Rep. 871 (1909), 2 K. B. 521, 25 T. L. Rep. 633. 78 L. J. K. B. 849, 2 Butterworth's W. C. Cas. 282.

(7) Senior v. Fountains, 97 L. T. Rep. 562 (1907), 2 K. B. 563, 23 T. L. Rep. 634, 76 L. J. K. B. 928, 9 W. C. Cas. 116.

bution of his wages, might have successfully put forward a claim for compensation under the act as a person in part dependent upon his son's earnings. The father in such case being truly dependent, in fact, upon his son's earnings for the fulfillment of his legal obligation to maintain his family.

Father, Who Is Employed, and Mother as Dependent on Son's Earnings.-The earnings of a father (which were the average earnings in his calling in his district), a son and two daughters were put in a fund from which the expenses of the entire family, including a mother and three other children, were paid. The son was killed in his employment, and the parents applied for compensation. The County Court Judge found as a fact that the parents were partly dependent upon the son's earnings, which finding was upheld by both the Court of Appeal and the House of Lords.s

It was said by the Lord Chancellor (Halsbury) in this case: "The sole question before us is whether there was any amount of dependency at all giving a right to anything. *** Now as to that question I do not think the Legislature ever intended that there should be any harp definite line drawn, but that in each case the question must turn upon whether there is or is not what the Legislature has described as a condition of dependency as being the test whether or not a person is entitled to any compensation by reason of a death. Now what is dependency? The notion that a person has a legal obligation upon him to keep his whole family when he earns a considerable part of what is required himself, and when the other members of the family only contribute a small part, appears to me to account for the Legisla-. ture having introduced, not only dependency, but partial dependency. Was

(8) Main Colliery Co. v. Davies (1900), A. C. 358. 16 T. L. Rep. 460, 69 L. J. Q. B. 755, 65 J. P. 20. 1 W. C. Cas. 92.

there, or was there not partial dependency in this case that is to say, was there evidence upon which the County Court Judge might have come to the conclusion that there was? For my own part, I cannot in the least doubt that there was. The family were all dependent upon the wages. Whose wages? Partly this boy's wages. It was said that this boy was under no obligation to support his brothers and sisters. No one denies that; but it appears to be forgotten that the obligation is upon the head of the family. He is by law bound to support his family, and he would be punished by law if he did not support them. Therefore the burden being upon the father of the family, the father of the family in his turn obtains from the wages of those who are being maintained by him a partial contribution to the general family fund. Why is not the father in the discharge of that burden partly dependent upon the earnings which he receives from his children? *** It appears to me that he must be relying or dependent-call it what you please--for the funds by which he discharges his legal obligation upon the funds supplied to him, or partly supplied to him, by the children who earn

those funds."

Father as Dependent on Son Whom He Supports.-A boy fourteen years of age. whose wages were six shillings eleven pence a week, was killed by an accident in his employment. His wages were paid to the father and helped to maintain the family. The father supplemented his regular employment by carrying on the trade of barber three evenings a week and part of Saturday. and part of Saturday. The boy assisted his father in this trade, which services were worth six shillings a week. Upon application by the father for compensation the County Court Judge held that he was neither wholly nor partially dependent upon the son's earnings, as six shillings eleven pence a week was not more than enough to maintain the boy