him and saw the rupture, had no personal knowledge of the exertion, but was informed as to that fact. If a competent physician and surgeon, he was likely able to tell, from his inspection, whether the rupture was of recent origin. Having inspected it and knowing from others what the patient had previously done, he gave it, as his opinion, that the injury had resulted from strain in lifting the pipe. Support of his conclusion is found in the known facts, previous ability to work, the exertion and the rupture. Failure of the injury to cause serious discomfort, until the second day after its occurrence, does not negative the inference arising from these facts. "Sometimes there is complete absence of pain and tenderness in the hernia itself." Ency. Britanica. The article brought to our attention in the brief says traumatic hernia completely developes immediately or in a day or two after the blow. Common sense suggests that a rupture from a strain might develop more slowly than one caused by a blow.

The case has been very poorly developed. No effort by the applicant strictly to prove the claim was made, until after its rejection. He relied upon the result of the Commission's investigation and apparently was not advised of the supposed insufficiency of the evidence, before the finding and announcement of the result. Then, although an informal re-hearing seems to have been allowed, no new evidence of consequence was filed. The suggestion here of additional proof is utterly futile. However, the facts disclosed by the record establish the claim. Accordingly an order will be entered, requiring the Commission to ascertain the amount of the indemnity and cause it to be paid.

(Claim 210-66. John Cucia.)

(FATAL.)

The above claim was this day presented to me for consideration, application for compensation being filed by the Royal Italian Consul at Philadelphia, in behalf of Raffaele Cucia and Anna Luigia Pirisi, father and mother respectively of the deceased employee John Cucia, claim being made as partial dependents. Application is also filed by the Imperial & Royal Austro-Hungarian Acting ViceConsul, as legal representative of the absent dependents of John Cucia.

With reference to the latter application, no evidence has been submitted establishing dependency, as the deceased was evidently not a resident of Austro

Hungary.

The Royal Italian Consul submits a number of affidavits purporting to prove dependency of the father and mother of the deceased, and also submits a number of money order receipts dated 1911 and 1912, but nothing for the twelve months prior to the death of the employee, John Cucia. Affidavit No. 1, of date June 21, 1914, made by four persons, residents of the Province of Sassari states that the deceased during the time he was in America provided to the support of his family with an average of 1,500 lire yearly, this affidavit, however, is not made by the alleged dependents, nor is there any evidence submitted other than the statement. Affidavit of Faedda Francesco, dated 18th of January, 1915, states that the deceased would have sent 125 lire montly for the support of his parents, that the father wrote to his son saying that for his support and that of his wife he would have used ninety lire, and that he would take care of his children with

his own work, the remainant he would have saved for and on account of his son. The affidavit of the father dated November 8, 1914, states that his son used to send an average of 125 lire per month, that of such amount 90 lire were used each month for the exclusive support of the family, and balance remained at his disposition, but he does not state that said amount was necessary for his support, but in an additional affidavit states that he used to provide to the needs of the family with his work.

While it may be that the deceased sent money to his parents during the twelve months prior to his death, there is nothing in the evidence to show that he did, except the statements of witnesses, and the statement of the claimant himself.

The deceased son was thirty-two years of age, and consequently not legally bound to support his parents, and the fact that he did send sums of money to his parents, does not necessarily mean that said parents were dependent on said contributions for their support, there being no evidence that they were so dependent.

"The mere fact that a father receives money from his son and spends it, is not alone sufficient to establish a claim under the Compensation Act."

Main Colliery Co. vs. Davies 2 W. C. C. 108.

"Deriving benefit from earnings is not necessarily being dependent upon them. It was not sufficient to show merely that the claimants derived some pecuniary advantage from the deceased, it was necessary to show that they had to rely on him for some of the necessaries of life." Simmons vs. White Brothers, 1 W. C. C. 89.

In as much as the West Virginia Workmen's Compensation Act does not presume any person dependent until dependency is proven, dependency is a question of fact, and not one of law, and from the evidence submitted in this claim, I find that the claimants have not proven dependency for support upon the earnings of the deceased at the time of his death, as provided in Section 33, paragraph (f) of said Workmen's Compensation Act. Compensation is therefore refused. LEE OTT,

State Compensation Commissioner.

July 12, 1915.

IN THE

SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA. September Term, 1915.

GAETANO POCCARDI, Royal Consul of Italy, on behalf of the dependents of Giovanni Cucca, Petitioner.

VS.

STATE COMPENSATION COMMISSIONER, Respondent.

To the Honorable, the Supreme Court of Appeals of the State of West Virginia. The petition of Gaetano Poccardi, Royal Consul of Italy, respectfully shows to the Court as follows:

Gaetano Poccardi, Royal Consul of Italy and official representative of Raffaele Cucca, father and Anna Luigia Pirisi, mother seeks in this action to recover benefits from the State Compensation Commissioner under the Workmen's Compensation Act for the death of Giovanni Cucca.

Giovanni Cucca, deceased, was killed on April 28, 1914 by reason of an accident in the mines of the New River & Pocahontas Consolidated Collieries Co. at Eccles, West Virginia.

From information and belief, this Company was insured and receiving the benefit of the Workmen's Compensation Act, together with Giovanni Cucca, the employee.

Form No. 10 of formal application for compensation was presented to the Public Service Commission within proper time, namely July 28, 1914, and therein it appeared that the parents are Raffaele Cucca, father, and Anna Luigia Pirisi, mother, who stated that they are partially dependent on deceased, and according to official documents and other evidence which is on file with the Commissioner swear that they were receiving the sum of 1,500 lire annually from the deceased on an average of 125 lire per month. Besides these amounts the father only had the earnings derived from his daily work.

Your petitioner presented affidavit on November 8, 1914, in which the deponent, Raffaele Cucca, swore that during the last 12 months proceding the accident his son Giovanni Cucca used to send him an average of not less than 125 lire per month and of such amount 90 lire were used each month for the exclusive support of the family (meaning the father and mother) and the balance remained at their disposition. A further affidavit of January 18, 1915 made by a certain Faedda Francesco who frequently aided the father in reference to the correspondence with his son swears that he had read the letters of the deceased addressed to the father in which the son stated that he would send 125 lire per month for the support of his parents, which sum at times exceeded that amount and that Raffaele Cucca wrote to his son saying that for his support and that of his wife he would use 90 lire and that he would take care of the rest of his children with his own work and the remainder he would save for and on account of his son. The son replied to the communication of his father authorizing him to spend

even more.

Further your petitioner has presented transmission receipts showing amounts remitted by the deceased to his father during the past several years which are as follows:

Transmission receipt dated January 2, 1913 for 250 lire.

Transmission receipt dated December 29, 1911 showing that the sum of 100 lire was deposited with the bank of Cesario, Girardi & Co. of New York by Giovanni Cucca for transmission to his father.

Receipt dated April 4, 1914, showing that the same bank had received the sum of 200 lire from Giovanni Cucca for transmission through postal telegraph to the father.

Receipt dated August 5, 1912, showing that the same bank had received 150 lire from Giovanni Cucca for transmission to his father through telegraph money order.

Your petitioner was advised on July 12, 1915, that no compensation was awarded in the claim arising out of the death of Giovanni Cucca on the ground that it was not proven that the father was being supported by his son at the time of his death.

Your petitioner therefore seeks the right which is provided by Section 43 of the Workmen's Compensation law in effect May 22, 1913, as amended and repealed by the Act in effect May 21, 1915, which provides for an appeal upon a denial of compensation within sixty days from the date of the same, to your

Honorable Court on the ground that from the evidence before the Commissioner the dependency of the father in question is sufficiently made out.

Your petitioner respectfully prays that an appeal be granted out of and under the seal of this court in order that the case shall be tried by said court to the end that said case may be reviewed and determined by this court as provided by law and that your petitioner may have such other further relief and remedy in the premises as to this court may seem proper.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA.

GIOVANNI CUCCA,

VS.

STATE COMPENSATION COMMISSIONER.

Original
No. 3031.

John Cucca or Cucia, an Italian, was killed by the explosion in the Eccles Coal mine in Raleigh County, April 28, 1914. He was 22 years old. His father, Raffaele Cucca, and his mother, Anna Lungia Pirisi, through Gaetano Poccardi, Consul of Italy, made claim for compensation as partial dependents of the deceased, which was refused by the Commissioner on July 12, 1915, on the ground that dependency, neither total nor partial, had been proven.

There are three affidavits; first a joint affidavit of four persons to the effect that while deceased was in America he sent to his family in Italy an average of 1,500 lire yearly, and that the family had no other means besides the earnings derived from the daily work of the father, Raffaele Cucca. Next, the affidavit of the father, that the deceased sent him an average of 125 lire a month during the year preceding the death, and that 90 lire was used by the family (meaning himself and wife) and the remainder placed to the disposition of deceased (presumably to his credit). The other affidavit, that of Faedda Francesco is to the effect that he assisted in the correspondence between father and son, and that the son agreed that the father should have 90 lire or even more for the support of the father and mother, and the father stated that he would take care of the children with his own work, and that the son during the year preceding his death never sent less than 125 lire per month.

This is the evidence on which is predicated the claim of dependency. Receipts for moneys sent to Giovanni Cucca, and to Cicita Raselli (said to be grandmother) for years prior to the 12 months period before the death are filed as an evidence that he was in the habit of sending money home. These receipts were found among the papers of the deceased, but no receipts for moneys sent within a year preceding the death were found among his papers. This is significant. Neither are any of the letters that passed between father and son, at any time, in evidence. But even if we conclude that an average of 125 lire per month was sent to the father in the year preceding the death, and that 90 lire was used by

the father for his own support and the support of his wife, under an agreement between father and son, the fact of dependency is not shown.

Is it shown that the claimants were dependent upon the deceased for the necessities of life? The claimant's trade or calling is not shown, whether carpenter, glassblower, shipbuilder or farmer. There is no intimation of the amount of his daily wage, nor how much thereof is required to support his family. The membership of his "family" is not shown, nor their ages, sex, nor earning capacity. Dependency is a question of fact and not of law.

Bradbury's Workmen's Compensation 2nd ed. P. 583;
Simmons vs. White Bros. 1 W. C. C. 89.

Dawbarn W. C. Appeals 1910-1912, 88.

In England the case of New Mockton Collieries, Ltd. vs. Keeling, (6 Negligence & Compensation cases anno. 240) finally settled the controversy as to whether dependency was a question of fact or of law under the English Act-making it a question of fact.

In the states many of the various acts not including that of West Virginia conclusively presume that certain persons, such as widows or minor children, are dependents. Dependency of claimants not included in this statutory class, is universally held to be a question of fact. In this state no one is conclusively presumed to be dependent. See Sec. 33 paragraph (3) Chap. 10, Acts 1913.

In the case of re James (Mass.) 4 N. & C. C. Anno. p. 552 a decision that certain minor children were dependents, was held to involve no ruling of law, and would not be interfered with on appeal.

4 N. & C. C. Anno. page 552.

The fact that a son has sent money to the father under an agreement does not make the father a dependent upon the son for necessities of life. This is well settled. It is not sufficient for an applicant under the West Virginia law, where no person is conclusively deemed to be dependent, to state, "I am a dependent." The facts which constitute his dependency must be shown, such as his age, earnings, property, income, occupation, station in life and the demands upon him, so that the commissioner may decide the question of fact. It is only from such facts that the commissioner could determine if the applicant was dependent upon the deceased for the ordinary necessities of life, having due regard to his class and position, and not one who merely derived a benefit from the earnings.

It is submitted that the decision of the Commissioner on a question of fact is entitled to peculiar weight like that of finding a fact by a jury, and should not be set aside, without cogent reasons; that in this case dependency has not been proven, and the finding of the commissioner should be sustained.

Respectfully,

A. A. LILLY,

Attorney General FRANK LIVELY,

Asst. Atty. Gen'l.

Dec. 22, 1916.