The reasons of appeal are in reality only two. First, that there is not sufficient evidence to sustain the finding and award based thereon, that the deceased died of an injury arising out of and in the course of his employment; and second, that there is not sufficient evidence that the deceased was a "partial dependent" within the meaning of our Compensation Act. The injury to the deceased, as found by the court, was the acceleration of a previously existing heart disease due to his employment. If the employment accelerates or aggravates a predisposing physical condition, the employment is the immediate occasion of the injury and it arises out of it. Brightman'sCase, 220 Mass. 17, 107 N.E. 527; Hartz v. HartfordFaience Co., 90 Conn. 539, 97 A. 1020; Linnane v. Aetna Brewing Co., 91 Conn. 158, 99 A. 507. There was evidence from which the trial court might have made this finding. We cannot determine from our *Page 462 examination of the evidence that the findings of the Commissioner in the particulars involved were so unreasonable as to justify judicial interference, and to have required the Superior Court to have so held.
The second question likewise depends upon whether the trial court found the facts upon which its conclusion of partial dependency rests, and if so, whether its conclusion is correct. The question of dependency is one of fact, expressly made so by § 6 of Chapter 288 of the Public Acts of 1915. The finding of the fact of dependency will not be reviewed unless found without evidence, or contrary to the evidence, or in violation of law. Powers v. Hotel Bond Co., 89 Conn. 143,93 A. 245; Kennerson v. Thames Towboat Co., 89 Conn. 367,94 A. 372. None of the facts found, from which the conclusion of partial dependency was drawn, can be held to have been found without evidence, or contrary to the evidence. The question resolves itself to this: can the conclusion of partial dependency be legally drawn from the subordinate facts found?
The question of dependency is, whether the contributions were relied upon by the dependent for his means of living, judging this by the class and position in life of the dependent. Powers v. Hotel Bond Co., 89 Conn. 143,152, 93 A. 245; Mahoney v. Gamble-Desmond Co.,90 Conn. 255, 96 A. 1025. The trial court has found that the claimant did rely for his means of living upon the contributions of his father during the periods when he was not working. The three months preceding the death of the deceased he was at work and received no assistance from the deceased, but in the four months preceding this he had been assisted for the greater part of two months, and generally the deceased assisted the claimant from time to time when he was out of work. We have already decided that partial dependency may exist, though contributions be at irregular intervals, *Page 463 and in irregular amounts, and though the dependent have other means of support. Powers v. Hotel BondCo., supra. Under the authority of this decision the question of partial dependency was one of fact.
The defendant asserts that the receipt of support by the claimant when he did not work will not furnish a basis for a claim of partial dependency when he was working after September and at the time of the decease of Gherardi, unless the finding is to be read to mean that the claimant's period of idleness was due to his health. I do not think the finding is to be read in this way. Nor can it be assumed that these periods of idleness were wilful. A consideration of the evidence shows that the only evidence upon the subject was that of the claimant, and that the periods of idleness in September and June were spent in looking for a job. I think the finding of the Commissioner as to partial dependency was one of fact, and that he committed no error of law in making it.
We have reiterated our adherence to the test of dependency announced in Powers v. Hotel Bond Co.(Blanton v. Wheeler Howes Co., 91 Conn. 226, 231,232, 99 A. 494), and other jurisdictions have cited this as the standard in Connecticut for ascertaining a "dependent" under the Act. The authorities generally adopt this test. The finding fully satisfies the conditions of fact upon which the test rests, and no question is made in the opinion as to the correctness of these findings and conclusions of fact. The majority opinion accepts this test, but adds "another important condition." It holds that dependency must be determined by looking at all the circumstances to discover what in fairness and right the conditions ought to be, and if the circumstances do not measure up to this standard dependency cannot exist. This test, I think, is too uncertain and variable to predicate a rule of law *Page 464 upon. Perhaps for these and the like reasons we do not find that the many courts which have had the question of dependency before them since Compensation Acts were first enacted, have ever adopted this test, with the possible exception of Kansas. Applying its test the opinion holds that no one, not belonging to the enumerated statutory classes of dependents, can be a dependent who can support himself and family as befits his station in life by the exercise of such effort as he reasonably ought to make. In the application of this test, necessarily in each case the trier must ascertain all of the many family conditions, and then decide whether or not the alleged dependent ought or ought not to have been earning his living while he was receiving support from the injured. The same standard must apply to male and female, — and since "fairness and right" may decree that in many cases the female, and in some cases the male, should not be required to earn their living because of incapacity through disuse, or through failure to have become accustomed to such service, the courts must in each case decide when the claimant dependent shall work, what he shall work at and how much. This ruling will be apt to divide claimant dependents into classes, particularly women. Those women who have never been accustomed to work for a living and receive support will be held to be dependents, and those who have been accustomed to work for a living and don't, through receiving support, will be held to be nondependents. I regard such a rule of law as imposing upon courts a duty at once incapable of impartial and uniform adjudication, whose application might prove harmful and even dangerous to society. Each Commissioner will have his own standard of what is fair and right in each case. Some States have legislated upon this subject; this would have been wholly unnecessary if it had been thought that their *Page 465 courts could adopt this test of dependency. This question was decided in accordance with the foregoing doctrine in Blanton v. Wheeler Howes Co., 91 Conn. 226,232, 99 A. 494. Among the classes conclusively presumed by our Compensation Act to be wholly dependent, is (c) "any child under the age of eighteen years, or over said age but physically or mentally incapacitated from earning" etc. There was no occasion for this definition if "dependent" was intended in the Act to have the meaning the majority opinion gives it.
Turning to the facts of this case the opinion points out, and with accuracy, that although the claimant was supported by his father in the periods when he was not at work, the reason for his failure to work does not appear in the finding. The memorandum of decision of the Commissioner suggested that the claimant may have been unduly pampered by his father, and that possibly he was somewhat lacking in enterprise. The opinion recognizes that the finding is inadequate, as indeed it is, to differentiate this case as one of this character, for it says, "This may not be a case of the character just described." But since the Commissioner said in his memorandum: "It is not the function of the trier to pass upon the proper standard of bringing up children or the best parental methods of enforcing application and thrift in young men," but rather "to find the facts as they exist and apply the law to them whether he approves of the facts or not," the opinion holds that when these facts appear they must be considered in resolving the question of dependency; and it holds that the Commissioner was in error in failing to consider these facts in making up his award.
It disposes of this ground of error to point out that the issues raised by the reasons of appeal do not include this point. It is not before the court, and it is not among those exceptional considerations which will *Page 466 sometimes justify the court in considering unassigned error upon appeal, although outside the scope of the appeal and the arguments of counsel. If the defendant had desired a finding upon the cause of the claimant's irregularity in work, it could have asked for it. Until in some authoritative way these facts were incorporated in the finding and the conclusion of dependency thus shown to be unfounded, it must stand. If we could examine the evidence we should find that the only evidence offered upon this point was to the effect that the irregularities in the claimant's work were due to his difficulty in securing a job although he made diligent effort. If the opinion is correct that the finding does not determine whether the irregularity in work of the claimant was due to his own disinclination to work and to the pampering of his father, or to other sufficient cause, and the Commissioner failed to consider this phase of the case which the evidence upon another hearing might show, it does not follow that there should be a reversal and a directed judgment, but rather a reversal and a new trial. Otherwise it may be that the cause will be decided upon a set of facts never found, and which a new trial would not establish.