Merchant's Case

Lummus, J.

Herman Merchant, born February 13,1906, who had just finished four years at Tufts College, was killed on August 13, 1930, in the course of his employment as a painter for John J. Collins. His father, Leland G. Merchant, was awarded partial dependency compensation by a ma *37 jority decision of the Industrial Accident Board and by a decree of the Superior Court. The insurer appealed.

The only question is whether there was evidence warranting a finding that the father was “partly dependent upon the earnings of the employee for support at the time of the injury.” G. L. (Ter. Ed.) c. 152, §§ 1 (3), 31, 32. Until November, 1928, the father was a barber, earning more than $30 a week. At that time he opened a barber shop, without capital, and still operates it, employing two barbers, one of whom he guarantees $30 a week. The net earnings of the father have averaged $30 a week, but without deducting instalment payments upon the purchase price of the shop equipment. He was paying $10 a month to one concern, $15 a month to another, $4 a week to a third, and irregular payments to others. He was trying to build up the business. There was no evidence that he was unable to earn as much as before as a journeyman barber. His family consisted of himself, his wife, and the employee, their only son.

When the father opened the shop, he told his son that if the son wished to continue in college he must pay his own way. The son played football, baseball and basketball for pay, and also worked at various jobs. He borrowed money during his last two years at college, from various charitable sources, $300 in October, 1928, $500 in 1929, $100 in January, 1930, and $100 in March, 1930. At the time of his death he owed $140 for board at the fraternity house at Tufts College, where he lived from September, 1929, until January, 1930. Apparently he lived with his father the rest of the time although he did not take many meals at home. In the year preceding the injury the son earned $833.60 and paid $624 to his father. The foregoing summarizes the evidence before the board.

A majority of the Industrial Accident Board believed that the employee was able to make considerable payments to his father in addition to putting himself through college; but there is nothing to show that such payments were made out of “earnings,” as distinguished from money borrowed. Even if they were made out of earnings, and helped the father defray his business or household expenses, the father fails to sustain the burden which is upon him (Ferriter’s Case, *38 269 Mass. 267, 268 ) of showing “that he depended for support on the earnings of the son.” Doherty’s Case, 277 Mass. 339, 341 , and cases cited.

Decree reversed.

Decree to he entered for insurer.