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ried son was wholly dependent upon him,, and dependent children are not to be notwithstanding her right to relief from considered wholly, but only partially, defour other sons, who were married, and pendent upon him.37 A father earning who did not contribute to her support. wages may be “in part dependent” upon

A woman may be dependent upon her the earnings of his child, within the sons as well as upon her husband where meaning of the act; and there is evithe earnings of all went into a common dence upon which the father may be fund out of which the family was sup- found to be, in fact, so dependent, and to ported. The application of this prin- be entitled to compensation for the death ciple works to the advantage of the de- of the child, where it is proved that the pendents, in a case where both the father child contributed to the family fund, and a contributing son were killed in the and that the father received the consame accident,35 and where the son or tribution and spent it in maintaining other contributing member of the family himself and his family.38 only was killed by accident.36 But it The mere fact that a man has deserted may work to the die: dvantage of the de- his family does not preclude them from pendent where the father only was killed, recovering compensation for his death ;39 since, according to this view, the mother, and the fact that a workman had, when 1205, 105 L. T. N. S. 337, 27 Times L. R. 460, 65 J. P. 20. This decision embodies 551, 55 Sol. Jo. 687, 4 B. W. C. C. 332. a doctrine similar to that adopted in an

34 Rintoul v. Dalmeny Oil Co. [1908] S. earlier case, in which it was held that a C. (Scot.) 1025.

finding of “dependency” was sufficiently 35 Where a father and two sons, all supported by evidence that the parents of killed in one accident, paid their wages an employee fourteen years old, who was in a common fund for the support of the killed, had received his weekly wages for family, the mother and the surviving chil- five weeks before his death, and handed dren are entitled to receive compensation over to him such pocket money as they in respect to the death of each of the thought right. Simmons v. White Bros. deceased. Hodgson v. West Stanley Col. [1899] Q. B. (Eng.) 1005, 68 L. J. Q. B. liery (1910] A. C. (Eng.) 229, 79' L. J. N. S. 507, 47 Week. Rep. 513, 80 L. T. K. B. N. S. 356, 102 L. T. N. S. 194, 26 N. S. 344, 15 Times L. R. 263. Times L. R. 333, 54 Sol. Jo. 403, 3 B. W. 39 Minor children may be found to be C. C. 260, 392, 47 Scot. L. R. 881.

wholly dependent upon the earnings of 36 McLean v. Moss Bay Hematite Iron their father where he had deserted his & Steel Co. (H. L.) [1910] W. N. (Eng.) wife and family, and for two years had 102, 54 Sol. Jo. 441, 3 B. W. C. C. 402, made but small payments, amounting in where a mother sought and was allowed all to £2, for their support, and therecompensation for the death of a son who after, the payments having ceased, the put his wages into the common household wife obtained a decree against him for fund, although the mother lived with her alimony, and recovered about 7 shillings husband and was also dependent upon his from his employers by arrestment used on wages.

the decree, and the workman then disToole v. The Isle of Erin (1909) 3 B. W. appeared and was not subsequently traced C. C. (Eng.) 110, where the court took the until his death. Young v. Niddrie & B. position that the wife cannot be wholly Coal Co. [1913] A. C. (Eng.) 531, 82 L. J. dependent upon her husband and partially | P. C. N. S. 147, 109 L. T. N. S. 568, 29 dependent upon a brother, for whose death i Times L. R. 626, 57 Sol. Jo. 685, [1913] compensation was sought, is overruled in W. N. 206, [1913] W. C. & Ins. Rep. 547, effect by Hodgson v. West Stanley Colliery 6 B. W. C. C. 774, [1913) S. C. 66, 50 Co.

Scot. L. R. 744, reversing [1912] S. C. 644, 37 The effect of the decisions cited in | 49 Scot. L. R. 518, 5 B. W. C. C. 552. the two preceding notes is to overrule It is not a correct proposition in law Senior v. Fountains (1907] 2 K. B. (Eng.) | that when it is found that, as a matter 563, 76 L. J. K. B. N. S. 928, 97 L. T. of fact, a father has deserted his children N. S. 562, 23 Times L. R. 634, where for three years, and paid nothing toward it was held that a widow and children their support during that period, that necof a workman were none the less "wholly essarily ends the matter, and his employer dependent upon his earnings at the time is not liable to pay compensation to his of his death” because he had been enabled | children. Dobbies v. Egypt & L. S. S. Co. through the receipt by him, either directly [1913] S. C. 364, 50 Scot. L. R. 222, [1913] or through his wife as his agent, of mon W. C. & Ins. Rep. 75, 6 B. W. C. C. 348. eys from wage earning sons, or of mon Although a workman had turned his wife eys coming to him through other channels, out of doors, and she had lived separate to augment the fund out of which he was from him for eleven years, receiving no legally bound to maintain, and had main support from him, she may be found to tained, his household.

be wholly dependent upon him. Medler 38 Main Colliery Co. v. Davies (1900) v. Medler (1908; C. C.) 124 L. T. Jo. A. C. (Eng.) 358, 69 L. J. Q. B. N. S. (Eng.) 410, 1 B. W. C. C. 332. 755, 83 L. T. N. S. 83, 16 Times L. R.

out of work, left his wife, and remained | born after his death, and that he would away until his death, some time after- marry the mother before the child was wards, does not prevent her from be- born, is admissible to show both patering“dependent” upon him.40 But a nity and dependency of the child.45 Such deserted wife may, by her conduct, estop children, however, may be shown as a herself from claiming to be a depend matter of fact not to be dependents. 46 ent.4

An illegitimate child of a workman canA posthumous child may be a "depend- not recover compensation for his death ent” within the act.42 So, a child en lin excess of what he would have been ventre sa mere may be a dependent upon obliged to give under a decree of affiliathe earnings of its father, although in- tion and aliment, in the absence of any directly through its mother.43 Illegiti- proof that the deceased had ever conmate children may be dependents within tributed to the child's support in excess the sense of the act; and this is so even of what he was required to by the deif they are posthumous. 44 Evidence of cree.47 A woman is not entitled to comstatements by a deceased workman that pensation for the death of a man with he was the father of an illegitimate child, whom she had cohabited for a period of

40 Coulthard v. Consett Iron Co. [1905] | pendent” of the man who admits that he 2 K. B. (Eng.) 869, 22 Times L. R. 25, is the father, and who had promised to 75 L. J. K. B. N. S. 60, 54 Week. Rep. marry the mother. Orrell Colliery Co. v. 139, 93 L. T. N. S. 756.

Schofield [1909) A. C. (Eng.) 433, 78 L. J. The fact that a workman who, being K. B. X. S. 677, 100 L. T. N. S. 786, 25 out of work in Scotland, went to Ireland, Times L. R. 569, 53 Sol. Jo. 518, allirmand obtained employment there, had not ing [1908] W. N. 243, 25 Times L. R. contributed anything to the support of his 106, 53 Sol. Jo. 117. wife for several months while he was out In Bowhill Coal Co. v. Neish (1909) S. of work, during which time she was sup- C. 252, 46 Scot. L. R. 250, where the mother ported by her father, does not prevent her of an illegitimate child had obtained a deand a posthumous child from being depend- cree for aliment against the father, but ents, where, prior to the time he was out nothing had been actually paid thereon, of work, he had supported her, and he the court rejected the contention of the had been at work but little over a week defendant that, inasmuch as no actual monwhen he was killed. Reg. v. Clarke (1906] ey of the deceased was proved to have 2 I. R. (Ir.) 135.

been actually spent upon the child, the 41 As where the wife left her husband child could not be said to be dependent more than twenty years before his death, on him. and had supported herself out of her earn- 45 Lloyd v. Powell Duffryn Steam Coal ings. New Monckton Collieries v. Keeling Co. (H. L.) [1914) A. C. (Eng.) 733. 111 [1911] A. C. (Eng.) 648, 80 L. J. K. B. | L. T. N. S. 388, 83 L. J. K. B. N, S. 1054, N. S. 1205, 105 L. T. N. S. 337, 27 Times | 30 Times L. R. 456, 58 Sol. Jo. 514, 7 B. L. R. 551, 55 Sol. Jo. 687, 4 B. W. C. C. W. C. C. 330, reversing [1913] 2 K. B. 332.

| 130, 82 L. J. K. B. N. S. 533, 108 L. T. Where a woman deliberately, of her own N. S. 201, 29 Times L. R. 291, 57 Sol. Jo. choice, separated from her husband, and a 301, [1913] W. N. 51, [1913] W. C. & Ins. daughter deliberately, of her own choice, Rep. 355, 6 B. W. C. C. 142. went with the mother, and the mother had 46 An illegitimate child who at its birth property of her own, and the husband had been taken over by another woman never contributed toward the maintenance and supported by her and her husband, of either of them, they are not dependent except for a small sum of money and a upon him within the meaning of the act. little clothing, is not a dependent upon Polled v. Great Northern R. Co. (1912) 5 her mother. Briggs v. Mitchell (1911] S. B. W. C. C. (Eng.) 620, former appeal, C. 705, 48 Scot. L. K. 606, 4 B. W. C. C. 5 B. W. C. C. 115.

400. Where a wife had been deserted for a And the husband of the mother of an number of years, and subsequently lived illegitimate son, who is not the latter's with another man, neither she nor their putative father, is not a "dependent,” alchildren can be considered dependents. Lee though the son's earnings were put into v. The Bessie [1912] 1 K. B. (Eng.) 83 common fund for the support of the [1911] W. N. 222, 105 L. T. N. S. 659, family. McLean v. Moss Bay Iron & Steel 81 L. J. K. B. N. S. 114, 5 B. W. C. C. Co. [1909] 2 K. B. (Eng.) 521, 78 L. J. 55, 12 Asp. Mar. L. Cas. 89, [1912] W. K. B. N. S. 849, 100 L. T. N. S. 871, 25 C. Rep. 58, Ann. Cas. 1913E, 477.

Times L. R. 633. This decision was reversed 42 Williams v. Ocean Coal Co. [1907] 2 by the House of Lords, but on another K. B. (Eng.) 422, 76 L. J. K. B. N. S. point. See note, 36 supra. See the deci. 1073, 97 L. T. N. S. 150, 23 Time R.

of the Hous of Lords on another 584.

phase of this case, note 36, supra. There 43 Day v. Markham (1904; C. C.) 39 L. was no appeal by the husband. J. (Eng.) 164, 6 W. C. C. 115.

47 Gourlay v. Murray (1908] S. C. 769, 44 A child en ventre sa mere is a "de. | 45 Scot. L. R. 577, i B. W. C. C. 335.

a

ten and one-half months, they holding | Upon the question whether alien dethemselves out as man and wife, where pendents residing abroad are within the the evidence shows that there was some purview of the English act, see the detalk of having the marriage ceremony cision of the House of Lords construing performed, but the man wished to have the British Columbia act, cited in note it postponed until he was in better cir- 64, infra. cumstances, and upon the birth of a posthumous child the mother had it registered 2. In Scotland under the act of 1897. as illegitimate 48

Under the act of 1897, dependents in A person confined in a prison is not Scotland included "such of the persons a dependent upon her son.49 So, an in- entitled according to the law of Scotmate of a workhouse to whose support land to sue the employer for damages or the injured workman does not in fact solatium in respect of the death of the contribute anything is not a “depend workman as were wholly or in part deent" within the meaning of the act, al- pendent upon the earnings of the workthough a liability under the poor law man at the time of his death.” As the to contribute to his support could be provisions in the earlier act relative to enforced against the workman.50 To Scotland differ from those applying in the extent to which a mother was sup- England and Ireland, the Scotch deported by the guardians of the poor, she cisions under that act are discussed sepais not dependent upon her son.51 rately.

It is not necessary that the support be The mother of a deceased workman, furnished regularly by the workman to whose parents were in part dependent render the recipient a dependent.52 on him, is not entitled to sue, where

In the case of the death of a work- the father is alive.54 Grandchildren are man, leaving dependents, the test by entitled to claim compensation for the which to determine whether they were death of their grandfather, in cases wholly dependent on his earnings at the where their father is dead.55 An illegititime of his death, within the meaning | mate child has no right to sue the emof the act, is whether money which the ployer of his deceased mother. 56 A workman was earning at the time of his woman living separate from a husband death was the sole source to which they who only contributed a small sum to her could look for maintenance at that time. support, the rest of her sustenance being Accordingly the fact that money came to obtained from relatives, and occasional them on the death of the workman can- employment, may claim compensation not be taken into consideration.53

for his death.57 But if, as a matter of 48 Fife Coal Co. v. Wallace [1909] S., Jo. (Eng.) 287, 73 J. P. 104, 53 Sol. Jo. C. 682, 46 Scot. L. R. 727, 2 B. W. C. C. 215, 2 B. W. C. C. 484. 264.

52 Where parents received money from 49 A widow who at the date of her son's time to time from their deceased son durdeath was undergoing a sentence of con- ing his lifetime, they may be found to be finement in a state reformatory for inebri-dependent, although there was no evidence ates, and during the four years preceding that the money was sent at regular interhad been in prison with the exception of vals or in fixed amounts. Follis v. Schaake ten months, and during that period had Mach. Works (1908) 13 B. C. 471, 1 B. occasionally earned a little by outdoor W. C. C. 442. work, but was otherwise entirely dependent 53 Pryce v. Penrikyber Nav. Colliery Co. upon her son, who had contributed 5s. or [1902] 1 K. B. (Eng.) 221, 85 L. T. N. S. 6s. a week towards her support, was not 477, 18 Times L. R. 54, 71 L. J. K. B. wholly or partially dependent on her son's N. S. 192, 66 J. P. 198, 50 Week. Rep. 197. earnings at the time of his death, within 54 Barrett v. North British R. Co. (1899) the meaning of the act. Addie & Sons' 1 Se. Sess. Cas. 5th series, 1139, 36 Scot. Collieries v. Trainer (1904) 7 Sc. Sess. Cas. L. R. 874, 7 Scot. L. T. 88. 5th series (Scot.) 115.

55 Hanlin v. Melrose (1899) 1 Sc. Sess. 50 Rees v. Penrikyber Nav. Colliery Co. i Cas. 5th series, 1012, 36 Scot. L. R. 814, (1903] 1 K. B. (Eng.) 259, 72 L. J. K. B. 7 Scot. L. T. 67; Cooper v. Fife Coal Co. N. S. 85, 67 J. P. 231, 51 Week. Rep. (1906–07] S. C. (Scot.) 564 (grandchild's 247, 87 L. T. N. S. 661, 19 Times L. R. mother was dead, and whereabouts of father 113, 1 L. G. R. 173.

unknown). The wife of workman who had de 56 Clement v. Bell (1899) 1 Se. Sess. Cas. serted her, and who did not furnish support 5th series, 924, 36 Scot. L. R. 725, 7 Scot. for her for seven years, who was obliged L. T. 44. to go to the workhouse, is not a dependent. 57 Cunningham v. M'Gregor (1901) 3 Sc. Devlin v. Pelaw Main Collieries (1912) 5 Sess. Cas. 5th series, 775, 38 Scot. L. R. B. W. C. C. (Eng.) 349.

574, 9 Scot. L. T. 36. 51 Byles v. Pool (1908; C. C.) 126 L. T. Cunningham v. M'Gregor was followed in

as

fact, the wife receives nothing at all of his family had been in the way of givfrom her husband who has left her, then ing him presents of money.61 A she is not dependent upon him.68 A daughter who keeps house for her father woman deserted by her husband, having may be dependent upon him.62 no title to sue for damages or solatium

3. In the Colonies. for the death of her son, has no title to claim compensation under the act as The court of appeal of British Columa dependent upon him.59

bia has held that alien dependents residThe fact that the father of the de- ing abroad are not within the purview of cedent was assisting a crippled relative the provincial act.63 But the House of does not show, as a matter of law, that Lords, to which an appeal was taken, he was not "partially dependent” on his upheld the right of alien dependents to son's earnings. 60 A parent who has a recover, as they were not within the wage sufficient for his support is not a exceptions contained in the act.64 dependent merely because some member In order to recover under the British Sneddon v. Addie & Sons' Collieries (1904), him board, lodging, and clothing, but no 6 Sc. Sess. Cas. 5th series, 992, 41 Scot. wages, is a dependent in the sense of the L. R. 826, 12 Scot. L. T. 229, where it act. Moynes v. Dixon (1905) 7 Sc. Sess. was held that a woman unable to do any. Cas. 5th series (Scot.) - 386. Lord M'Laren thing for her own support is entitled to said: “If it had been meant that the right compensation for the death of her hus was to be limited to those who were in band, although he had deserted her. the position to sue an action for aliment,

The wife of a foreigner who came to it would have been very easy to say so, Scotland, and during eight months' resi or if it had been meant to exclude those dence forwarded her the sum of £1, may who were earning wages for themselves, be found to be a “dependent,” but not that again could have been very shortly wholly dependent upon her husband, where and definitely expressed in the statute. she supported herself in part by earnings

But the analogy of an alimentary an outdoor laborer at a small wage. claim is not suggested by anything in Baird v. Birsztan (1906) 8 Sc. Sess. Cas. the statute,—the condition of total or par. 5th series (Scot.) 438.

tial dependence upon a man at the time 58 Where a wife voluntaril; left her hus- of his death introduces an idea wholly band, and a month afterwards gave birth foreign to the common law. I can see no to a child, and subsequently, by means of other construction for this provision except her earnings as a weaver, and the assist that the ground of liability is whether the ance of the relatives with whom she lived,' wages of the workman at the time of his she supported herself and her child, never death were in fact applied to the mainteasking for and never receiving aliment from nance of the person who is making the her husband, it cannot be said that either claim." Lord Ardwell observed that "it the wife or the child were either wholly or would be establishing a very hard precedent, in part dependent upon the earnings of the and a precedent that might work very workman at the time of his death, twelve badly in practice, to say that a daughter years after the separation. Lindsay v. who acts as the appellant did here shall M'Glashen (1908] s. C. 762, 45 Scot. L. R. not only lose the opportunity of saving 559; Turners v. Whitefield (1904) 6 Sc. money, but shall have no claim under Sess. Cas. 5th series, 822, 41 Scot. L. R. this act in respect of her father's death. 631, 12 Scot. L. T. 131, followed.

63K rzus v. Crow's Nest Pass Coal Co. A woman who has been for fourteen (1911) 16 B. C. 120, 17 West. L. Rep. years living apart from her husband, and (Can.) 687. was supported by an illegitimate son, is McDonald, Ch. J. and Galliher, J., connot wholly or in part dependent on the sidered that the scheme of the act was earnings of her husband, and is not entitled to shift the onus of providing for the to compensation. Turners Whitefield destitute from the state to the employer; (Scot.) supra.

and as nonresident aliens could not become 59 Campbell V. Barclay, Curle & Coy a burden on the state, it ought not to be (1904) 6 Sc. Sess. Cas. 5th series, 371, inferred, notwithstanding the general lan41 Scot. L. R. 289, 11 Scot. L. T. 682. guage of the statute, that the legislature

60 Legget v. Burke (1902) 4 Sc. Sess. intended to impose an obligation on the Cas. 5th series, 693, 39 Scot. L. R. 448, employer to compensate aliens. 9 Scot, L. T. 518.

64 [1912] A. C. (Eng.) 590, 81 L. J. P. 61 Arrol v. Kelly (1906) 8 Sc. Sess. Cas. C. N. S. 227, [1913] W. C. & Ins. Rep. 5th series (Scot.) 906 (son had made pay. 38, 107 L. T. N. S. 77, 28 Times L. Ř. ments to his father which averaged 10 s. 488, 56 Sol. Jo. 632, 6 B. W. C. C. 270, weekly; father's average weekly income was Ann. Cas. 1912D, 859. Lord Atkinson, £1, 4s. 11d).

after observing that the sole question for 62 The daughter of a workman, who had decision was whether the fact that the been previously earning wages, but who widow was an alien, resident in Austria, after her mother's death remained at home prevented the plaintiff, as legal representato keep her father's house, getting from I tive of deceased, from recovering compen

V.

" 67

Columbia act parents must show that in the sheriff court and concluding for they had a reasonable expectation of pe- damages under the employers' liability cuniary benefit from a continuance of the act 1880, or alternatively at common law life of the workman.66

or under the employers' liability act 1880, Whether a woman living apart from shall, notwithstanding anything conher husband is dependent upon him or tained in that act, not be removed under not is a question of fact under the west- that act or otherwise to the court of sesern Australian act.66

sion, nor shall it be appealed to that Those who are partially dependent court otherwise than by appeal on a quesupon the injured employee are left by tion of law; and for the purposes of the Quebec act to their remedy under the such appeal the provisions of the second Civil Code, their right to recover con- schedule to this act in regard to an aptinuing to be subject to the obligation peal from the decision of the sheriff on to prove that the accident was attribut- any question of law determined by him able to an “offense, or quasi offense, of as arbitrator under this act shall apthe employer.”

ply [new] XVI. Appeals in Scotland where an ac

b. Effect of this section. tion is raised independently of the

Section 14 of the act provides that in act ($ 14).

Scotland, where a workman raises an a. Text of $ 14.

action in the sheriff's court against his

employer independently of the act, and Section 14. In Scotland, where a concluding for damages under the emworkman raises an action against his ployers' liability act of 1880, or alteremployer, independently of this act, in natively at common law or under the respect of any injury caused by ac- employers' liability act of 1880, the accident arising out of and in the course tion shall not be remitted to the court of the employment, the action, if raised of sessions except upon an appeal on a sation under the provincial act, since he to Canada. Held, that the parents were would hold it, if recovered, for her benefit, not entitled to maintain the action as “desaid: “It is not insisted that the provin- pendents," inasmuch as they had failed to cial statute shall operate extraterritorially. show that they had any reasonable expecIt is insisted that by its express words tation of pecuniary benefit” from the deit imposes on the employer a liability to ceased. compensate his workmen for personal in- To the same effect, Varesick v. British juries by accident arising out of and in Columbia Copper Co. (B. C.) supra. the course of the employment which he 66 A wife who had been separated from carries on, and in which they work. Where l her husband for sixteen years, until the that employment is carried on in the prov- | time when she spent a few days in the ince of British Columbia, one of the results same house with him, but not as his wife, of this intraterritorial operation of the stat- and who for a considerable portion of the ute may, the respondents admit, possibly | period of separation had lived in adultery be that in some cases a nonresident alien with another man, is not a dependent upon may derive a benefit under it; but their the husband. Allan v. Oroya Brownhill Co. Lordships think that if the liability thus (1910) 12 West. Australian L. R. 1. expressly imposed is to be cut down at A woman living apart from her husband all, or if the employer is to be relieved may be found to be in fact dependent from it to any extent, this must be done upon the earnings of a deceased son who, either by some provision of the statute with several other sons, had lived with itself, or of the schedules attached to it, her and contributed to her support, aleither expressed or to be clearly implied, though her husband lives in the same town, and not by conjectures as to the policy and she has never taken any steps to proof the act not suggested by its language.” cure maintenance from him. Kilgariff v.

In Varesick v. British Columbia Copper Associated Gold Mines (1910) 12 West. Co. (1906) 12 B. C. 286, the judge of the Australian L. R. 73. county court apparently assumed that alien 67 An ascendant of whom a deceased eindependents residing abroad were entitled ployee was not "the only support” is not to compensation under the act, but com- within the class of persons (Rev. Stat. pensation was denied upon the ground that Quebec, art. 7323) to whom article 7335 it was not shown that the applicants were of the Revised Statutes of Quebec declares dependents.

that the employers shall be liable "only 65 In Brown v. British Columbia Electric for the compensation prescribed by this R. Co. (1910) 15 B. C. 350, there was evi- subsection," and his legal right of action dence that the deceased workman had on under article 1056 of the Civil Code has two occasions sent money to his parents not been taken away. Lamontagne v. Quein a foreign country; but it also appeared bec R. Light, Heat & P. Co. (1914) 50 that they had in the first instance assisted Can. S. C. 423. him by advancing money for his passage

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