Workmen's Compensation Act, Dependency. Parent and Child.
If, over three years before an employee of a subscriber under the workmen's compensation act received injuries which resulted in his death, his wife had separated from him for justifiable cause, taking with her a daughter of the parties then about six years of age, and at the time of the injury and death the daughter and the mother were still living apart from the employee and in the home of another man who was supporting both of them, the daughter under G.L.c. 152, § 32 (d), nevertheless is conclusively presumed to be dependent upon the employee because at the time of his death he was legally bound to support her.
CARROLL, J.
The employee received a fatal injury arising out of and in the course of his employment. His widow and a daughter nine years of age survived him. The question in the case is the dependency of the daughter. The single member found that the deceased employee was not bound to support her. This finding was reversed by the Industrial Accident Board. In the Superior Court a decree was entered dismissing the claim for compensation on the ground that the deceased employee was not legally bound to support the minor child. From this decree the claimant appealed.
At the time of the employee's death the wife and child were living apart from him for justifiable cause. The misconduct of the employee, which consisted chiefly of his failure to support the wife and child, continued up to the time of his death. It was found that, from the time the wife and child left him, he never contributed or offered to contribute to the child's support. The husband and wife separated in November, 1921. In January, 1922, the wife brought the daughter to the home of the employee's parents. The wife went to live with one Weeks, whom she married in 1925. In 1924 Mrs. Thurman removed the child to Weeks's house. The board found that the home of the employee's parents was not a suitable place for the child.
A child under the age of sixteen years is conclusively presumed to be dependent upon a parent who was at the time of his death legally bound to support her although living apart from the child. G.L.c. 152, § 32 (d). It was found as a fact that the wife was justified in separating from her husband. This being so, as the wife took the child with her, the husband was legally bound to support the child although she was living apart from him. Reynolds v. Sweetser, 15 Gray, 78.
In Gillander's Case, 243 Mass. 5, the wife deserted the husband, and it was not shown that she was justified in living apart from him. The father was willing and desirous of providing a home for the child and actually contributed toward the child's support. In the case at bar the father did nothing in the way of providing for the support of the child, and by his conduct justified the wife in leaving him and taking the child with her. Miller's Case, 244 Mass. 281, is to be distinguished from the case at bar. In the Miller case the wife obtained a divorce, the custody of the child being awarded to her. Under these circumstances the liability for the support of the child did not rest on the father. Brow v. Brightman, 136 Mass. 187. Foss v. Hartwell, 168 Mass. 66.
The finding of the Industrial Accident Board that the home of the grandparents was not a fit place for the child is a finding of fact which must stand as there was evidence to warrant it. Whatever wrong the mother may have been guilty of in living with Weeks during the lifetime of her husband, the child is not to suffer on that account; especially when the father made no provision for her and at no time requested her custody. She was under sixteen years of age and the father at the time of his death was legally bound to support her.
The decree is to be reversed and a decree entered for the claimant in accordance with the finding of the Industrial Accident Board.
So ordered.