12

employés.1 As said by Judge Cooley: "The officer is distinguished from the employé in the greater importance, dignity, and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office; and usually, though not necessarily, in the tenure of his position." 13 Except where the statute otherwise provides, as is done by the Ohio Act,1 a policeman is not an "employé" of the city, but is an "officer" holding an office of public trust.15 But a village night marshal, performing the duties of a policeman at night, was

12 (Code Supp. 1913, tit. 12, c. 8a, § 2477m16 [b]) Op. Sp. Counsel to Iowa Indus. Com. (1915) pp. 3, 7.

13 Blynn v. City of Pontiac, 185 Mich. 35, 151 N. W. 681; Mr. Justice Cooley in Throop v. Tangdon, 40 Mich. 673. A deputy surveyor, appointed by the surveyor general, received a personal injury while surveying lumber for the subscriber and claimed compensation as an “employé." The evidence showed that he was a public official; that he could not survey lumber under the law "for any person by whom he is employed"; that his duties were fixed by statute; that he was under the control and direction of the surveyor general; and that his salary was fixed by law and was in the form of fees covering the service rendered. The Commission held that he was not an "employé." Emerson v. Mass. Employés' Ins. Ass'n, 2 Mass. Wk. Comp. Cases, 181 (decision of Com. of Arb.).

14 A lieutenant of police of a city not maintaining a policemen's pension fund is an "employé" within the meaning of paragraph 1 of section 14 of the Ohio Act. In re Frances E. Lyman, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 182. 15 Blynn v. City of Pontiac, 185 Mich. 35, 151 N. W. 681. Policemen in the city of Minneapolis are officers of the city, and hence are excluded from the provisions of the act. Gen. Laws 1913, c. 467, § 34, subd. 1 [Gen. St. 1913, § 8230]) Op. Atty. Gen. on Minn. Wk. Comp. Act, Bul. 9, p. 26. The Court of Criminal Appeals of Texas has decided that "a policeman of a city is a public officer holding his office as a trust from the state, and not as a matter of contract between himself and the city, the word applying equally to every member of the police force," and that "a policeman is a public officer of the state expressly charged by the statutes with enforcing a large body of the criminal law." Ex parte Preston, 72 Tex. Cr. R. 77, 161 S. W. 115. See, also, McQuillin on Municipal Corporations, II, 940, and V, 5049; 28 Cyc. 497.

an employé subject to the Wisconsin Act.10 Firemen 1 and deputy sheriffs on a fee basis are officers rather than employés.18

18 (Wk. Comp. Law, St. 1915, §§ 2394-3 to 2394-7) Village of Kiel v. Industrial Commission of Wisconsin (Wis.) 158 N. W. 68.

17 Firemen of the city of Minneapolis, appointed annually and required to take an oath of office, are officers of the city, and hence excluded from the provision of the act. (Gen. Laws 1913, c. 467, § 34, subd. 1 [Gen. St. 1913, § 8230]) Op. Atty. Gen. on Minn. Wk. Comp. Act, Bul. 9, p. 24. Where part of the duty of a police constable was to act as fireman, and he was injured while so doing, he was not a workman. Sudell v. Blackburn Corporation (1910) 3 B. W. C. C. 227, C. A.

18 Where a deputy sheriff, injured while making an arrest, was appointed for his own convenience, received no compensation from the sheriff of the county, and was to receive no compensation other than fixed fees for serving of legal process, he was not an employé as defined by the Compensation Act, and his injury is not compensable. Yancey v. County of Los Angeles, 2 Cal. I. A. C. Dec. 601.

79. Payment to representatives-Survival of claim.
Determination of question of dependency.

80.

§ 70. Who are dependents and what constitutes dependency

Compensation Acts are founded on the theory of compensation, not only to the injured workman, but to his dependents in case of his death.1 While ordinarily no exact standard for the determination of dependency is prescribed by statute, and it is difficult, if not impossible, to formulate such a standard,2° it may be said in general terms that a "dependent" is one who looks to another for support, one dependent on another for the ordinary necessities of life, for a person of his class and position,21 and that, to be entitled to compensation as a dependent, one need not deprive himself of the

19 In re Nelson, 217 Mass. 467, 105 N. E. 357.

A provision in the Constitution authorizing the Legislature to enact laws providing "compensation to employés," in view of the trend of like legislation, must be construed to authorize laws not only giving compensation to the employés themselves, but also to those dependent upon them for support. Western Metal Supply Co. v. Pillsbury (Cal.) 156 Pac. 491.

20 Miller v. Riverside Storage Co. (Mich.) 155 N. W. 462.

21 Jackson v. Erie R. Co., 86 N. J. Law, 550, 91 Atl. 1035; Tirre v. Bush Terminal Co., 172 App. Div. 386, 158 N. Y. Supp. 883; Dazy v. Apponaug Co.,

ordinary necessities of life to which he has been accustomed, but he cannot demand compensation merely to add to his savings or investments.22 It follows that dependency does not depend on whether the alleged dependents could support themselves without decedent's earnings,23 or so reduce their expenses that they would be supported independent of his earnings, but on whether they were in fact supported in whole or in part by such earnings,25 un

24

36 R. I. 81, 89 Atl. 160; Simmons v. White Bros., 80 L. T. 344, 1 W. C. C. 89: Main Colliery Co., Ltd., v. Davies, 2 W. C. C. 108.

22 Dazy v. Apponaug Co., 36 R. I. 81, 89 Atl. 160.

23 Miller v. Riverside Storage & Cartage Co. (Mich.) 155 N. W. 462.

In Howells v. Vivian & Sons, 85 L. T. 529, 4 W. C. C. 106, it was said: "The test of dependency is not whether the family could support life without the contributions of the deceased, but whether they depended upon them as part of that income or means of living." The court held that, where the support of a deceased son cost the family 14s. a week, and he added 25s. a week to the family income, his father earning 33s. 9d. a week, the question of whether or not the family could support itself without his earnings is not a proper criterion of their dependency.

24 A dependent under the Act is not necessarily one to whom the contributions of the injured or deceased workman are necessary to his or her support of life; the test is whether the contributions were relied upon by the dependent for his or her means of living, judging this by the class and position in life of the dependent. Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245; Howells v. Vivian & Sons, 85 Lt. 529, 4 W. C. C. 106; French v. Underwood (1903) 5 W. C. C. 119 (Act of 1897).

25 Buchanan v. White Lumber Co., 2 Cal. I. A. C. Dec. 796; Pryce v. Penrickber Nav. Colliery Co., [1902] 1 K. B. 221.

The mother and sister of a deceased employé who were residents of Italy and unable to work, were found to be wholly dependent upon him, though they occasionally received small remittances from another sister, who was a member of the family, earning six or seven cents a day, and from an aunt, there being evidence that such remittances were wholly gratuitous, and that the pittance earned by the sister was hardly sufficient for her own support. Petrozino v. American Mut. Liability Co. (Caliendo's Case), 219 Mass. 498, 107 N. E. 370.

A workman's daughter was not dependent upon him for support where, for several years, she had resided with and been cared for by another; nor where the workman's wife had been supported by the state in an insane asylum for more than nine years, without any contribution to her support HON.COMP.-15

der circumstances indicating an intent on the part of deceased to furnish such support.28 Occasional gifts, not being contributions

being made by deceased, was she dependent upon him for support. Roberts v. Whaley (1916, Mich.) 158 N. W. 209.

Where deceased and his brother made their homes at their sister's house, though away from Monday until Saturday, but spending their entire spare time at her house from Saturday until Monday, and each paying her $5 a week, which payments were materially greater than what was received from her, the sister was found to be a dependent. Hammill v. Pennsylvania R. Co., 87 N. J. Law, 388, 94 Atl. 313. That the workman's father worked and earned $26.40 a week, and that the mother and sisters also worked, did not alter the fact that decedent's earnings went to the general support of the family, and that the amount contributed by him amounted to more than his board, lodging, and other expenses, and that the family were dependents, in that they derived substantial benefit from the fact that he lived with them and voluntarily gave all his wages into the common fund. Conners v. Public Service Electric Co. (1916, N. J.) 97 Atl. 792. Evidence that an adult workman turned over his wages to his father, and that his sister received substantial benefit therefrom, authorized an award of compensation to her, whether she was an adult or a minor. Id. Decedent's mother was actually dependent upon him where decedent, who was 18 years old, his stepfather, and seven other children constituted the family, and it appeared that the husband earned $11 a week and decedent $6, of which he contributed $5 to the support of the family, and that the family had no other property or income. Krauss v. Fritz & Son, Inc., 87 N. J. Law, 321, 93 Atl. 578. Proof that, prior to and up to the time of his death, decedent gave his earnings to his father, and that the father had no other income or means of support, justifies a finding that the father was an actual dependent of decedent. (P. L. 1911, p. 139, § 2, par. 12) Reardon v. Philadelphia & R. Ry. Co., 85 N. J. Law, 90, 88 Atl. 970. Where the deceased workman's sister was an unemployed schoolgirl, largely supported by his earnings, she was a "dependent." (Consol. Laws, c. 67) Walz v. Holbrook, Cabot & Rollins Corp., 170 App. Div. 6, 155 N. Y. Supp. 703. In Kane v. New Haven Union Co., 1 Conn. Comp. Dec. 492, it was held that where a minor son contributed all of his earnings, $11 per week, to a family fund, receiving therefrom his clothes and personal expenses, his father was a dependent.

Where the mother of a deceased employé, living with her husband and

26 Dependency in fact within section 19 (b) of the California Act refers to the receipt of support under circumstances indicating an intent of deceased to furnish support to the dependent. Prichard v. American Beet Sugar Co., 2 Cal. I. A. C. Dec. 341. The intent of a son to contribute to his parents' support must be clearly shown to establish dependency. Da Luz v. Rideout, 2 Cal. I. A. C. Dec. 359.