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233 Mass. 297

Perotti's Case

Massachusetts Supreme Judicial Court

Decided June 24, 1919

Massachusetts Supreme Judicial Court · decided 1919-06-24

<p>Workmen’s Compensation Act, Procedure: deposition; Dependency.</p> <p>On an appeal to this court from a decree of the Superior Court, made in proceedings under the workmen’s compensation act on an appeal by the claimant from a decision of the Industrial Accident Board awarding compensation to the widow of a deceased employee as one partially dependent upon him, the record showed that the widow resided in Italy and was not present at the hearings, that, at the hearing before the single board member, the counsel for the insurer objected “to all witnesses on the ground that the widow is living and the statute provides a means for getting her testimony;” that, at the hearing upon a review of the decision of the single member at the request of the claimant, a motion of the claimant that she be permitted to take depositions of witnesses in Italy was denied, the action on the subject before the single board member being referred to in the record, and that, at the hearing before the Superior Court of an appeal by the claimant, a motion that the case be ordered reopened by the Industrial Accident Board for the purpose of the taking of depositions in Italy was denied. Held, that it could not be said that there was any reason to question the action of the single member of the Industrial Accident Board and of the full board in refusing to request the Superior Court, under St. 1911, c. 751, Part III, § 3, as amended by St. 1915, c. 27.5, to issue a commission for the taking of the deposition.</p> <p>In the case above described, no questions of law were raised at any of the hearings and it was held, that the decision of the Industrial Accident Board on the question of dependency, being one of fact, was final.</p>

Relies on Derinza's Case · Pass's Case · Gorski's Case

Decided 1919-06-24

Rugg, C. J.

¶1This is an appeal from a decree of the Superior Court entered in accordance with the findings and decision of the Industrial Accident Board, affirming and adopting those of the single member. It is conceded that the employee, a subject of Italy, received fatal injuries in the course and arising out of his employment by a subscriber under the act. This proceeding is brought by his widow, a resident of Italy.

¶2At the hearing before the Industrial Accident Board a motion was made in behalf of the widow that depositions of witnesses be taken in Italy. This was denied. The reasons are not stated, but in that connection it is stated that, at the hearing before the single member, the insurer objected that the testimony of the claimant should be taken by depositions. The single member overruled the objection and proceeded with the hearing. A motion was made in the Superior Court which, although quite informal, is treated *300as in substance a motion to recommit to the Industrial Accident Board in order that depositions of witnesses in Italy might be taken.

¶3It is provided by St. 1915, c. 275, amending St. 1911, c. 751, Part III, § 3, as theretofore amended, that “Upon the written request of the board or of any member thereof,” filed with the clerk of the Superior Court, commission to take depositions shall issue. The natural inference from the words of this statute is that ordinarily the decision whether such depositions ought to issue or not rests with the board or any member of it. See Derinza’s Case, 229 Mass. 435, 438. It is not necessary to determine whether under any circumstances an unreasonable refusal by the board to make such request'is reviewable. That question is not presented on this record. The claimant, although attention was called to the subject of depositions, chose to go to hearing before the single member without asking for the taking of depositions.

¶4There is nothing on the record except bald denials of the motions for the taking of depositions. The averments ’in the motions are not evidence, nor can they be taken as true. There is nothing to indicate that there was any real reason in their support or that they were not denied rightly. -

¶5The findings of the single member and of the board on review as to the extent of dependency involve no question of law. Manifestly the widow, under the circumstances disclosed, was not entitled to the benefit of the conclusive presumption of dependency established by the act. Nelson’s Case, 217 Mass. 467. The extent of her dependency upon the wages of the deceased employee was a question of fact. Gorski’s Case, 227 Mass. 456, 460. No ruling of law appears to have been made and none was requested. The decision of the board is final on questions of fact and not open to revision. Pass’s Case, 232 Mass. 515, and cases there collected.

¶6 Decree affirmed.

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