We dissent. Under our statute which provides for compensation to a major dependent "to the extent of such dependency" one partially dependent on the deceased is entitled to compensation. This court recognized this rule in Edwards v. Butte SuperiorMining Co., 83 Mont. 122, 270 P. 634.
Mrs. Betor testified that deceased contributed to her about forty dollars per month in cash, which she used to buy "clothing and grub"; the record indicates that some contributions had been made for five or six years. This was corroborated by her husband, father of the deceased, who also testified that Mrs. Betor was partially dependent on Arthur for *Page 490 a living and that she required his assistance. These witnesses were uncontradicted on this point.
If the decedent rendered material assistance in maintaining the mother in a "condition suited to her station in life," compensation will not be denied to her on the ground that her husband was also providing her with some of the necessities of life. (28 R.C.L. 779; Rock Island Bridge Iron Works v.Industrial Commission, 287 Ill. 648, 122 N.E. 830; Ogden City v. Industrial Commission of Utah, 57 Utah, 221, 193 P. 857;Paul v. State Industrial Acc. Com., 127 Or. 599,272 P. 267, 273 P. 337; Conners v. Public Service Electric Co.,89 N.J.L. 99, 97 A. 792.) Nor will the fact that the mother had some property and other sources of revenue prevent a finding that she is partially dependent. (Rhyner v. Hueber Bldg. Co.,171 A.D. 56, 156 N.Y. Supp. 903.) And partial dependency may exist even though a showing is made that without the contributions claimant could have subsisted. (Peabody Coal Co. v. Industrial Commission, 311 Ill. 338, 143 N.E. 90.)
This court in Edwards v. Butte Superior Min. Co., supra, quoted with approval from Honnold on Workmen's Compensation, volume 1, section 70, the following: "It follows that dependency does not depend on whether the alleged dependents could support themselves without decedent's earnings, 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, under circumstances indicating an intent on the part of deceased to furnish such support." In fact, the test applied by the authorities generally is not whether the claimant would have been without the necessities of life in the absence of the contributions but rather, were the contributions actually made and relied upon? (Richardson Sand Co. v.Industrial Co., 296 Ill. 335, 129 N.E. 751; In re Carroll,65 Ind. App. 146, 116 N.E. 844; Appeal of Hotel Bond Co.,89 Conn. 143, 93 A. 245; Gonzales v. Chino *Page 491 Copper Co., 29 N.M. 228, 222 P. 903; Texas Employers' Ins.Assn. v. Peterson (Tex.Civ.App.), 251 S.W. 572.)
Regarding the bank account referred to in the majority opinion, the witness Blibal Betor testified that he borrowed large sums of money and was buying and selling cattle, and when the cattle were shipped he would pay the money back. He testified that he was indebted at the time of the hearing before the Accident Board in the sum of $11,000; that while he had been successful in business in Marysville when the town was thriving, that condition did not obtain at the time of the hearing or at the time of the death of decedent. Marysville once had a population of 3,000 people but at the time of the hearing there were but a few families there. That during the past few years he had not been successful in business, and that his ranch property cannot be sold. Claimant testified that she at one time operated a store in Marysville but that she did not make interest on the investment and that the property owned by her cannot be sold.
The uncontradicted testimony shows that deceased had made contributions of $40 per month for five or six years. While it is true that the only specific instances testified to were two contributions, one in May and one in June, of $40 each, if greater detail was desired so that a more accurate test could be made, it was the duty of defendant to elicit the details on cross-examination. (Leach v. J.I. Case Threshing Machine Co. (S.D.), 219 N.W. 884.)
Here the Industrial Accident Board had before it sufficient competent evidence of a partial dependency. In its findings it commented favorably upon the demeanor of the witness Anna Betor and upon the effect of her testimony. Under the rule frequently announced by this court, if there is any substantial evidence to support the finding and decision of the board, its action should not be reversed by the courts. (Morgan v. Butte Central M. M. Co., 58 Mont. 633, 194 P. 496; Edwards v. Butte Superior Min. Co., supra.) *Page 492
It is our opinion that the lower court did not err in affirming the finding and decision of the Industrial Accident Board and that the judgment should be affirmed.
Rehearing denied October 4, 1929.