Foley, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.
This workmen's compensation appeal is before us for rehearing, pursuant to leave granted, on the limited issue of whether Jose Antonio Santiago, the infant child of Pedro Mercado Santiago, the deceased employee of respondent, is entitled to dependency benefits as a total dependent or as a partial dependent. The Division of Workmen's Compensation, the County Court on appeal, and our original decision all held that Jose was only a partial dependent.
The facts are not in dispute. Pedro Mercado Santiago lost his life on February 27, 1958 as a result of burns received when an explosion occurred at respondent's premises in Vineland, New Jersey. He had married Marie Elena Santiago on December 31, 1952 in Puerto Rico and on January 28, 1954 Jose was born of the marriage. Thereafter Marie separated from the decedent and in September 1955 left Puerto Rico to reside in Brooklyn, New York. Jose remained in Puerto Rico. On March 19, 1955 Pedro, without benefit of a divorce, married Esther Morales Santos in Puerto Rico and they subsequently came to Vineland, New Jersey, where Pedro was
employed by respondent. Jose, decedent's child, who was four years old at the time of his father's death, continued to live in Puerto Rico with his grandparents, decedent's father and mother. Decedent sent weekly payments of $10 to his father which were used toward the support of not only his son Jose, but also his father, mother, sister and two brothers.
Dependency benefits claimed by Marie Elena Santiago, decedent's lawful widow, were denied because she was not a member of his household at the time of his death and had consented and acquiesced in the separation from her husband. A claim for benefits by Esther Morales Santos was denied because her marriage to decedent was bigamous and therefore void. Partial dependency benefits were awarded to decedent's son Jose, decedent's father, mother, sister and two brothers. On this rehearing, as noted above, we are concerned only with the question of whether Jose is entitled to benefits as a partial dependent or a total dependent.
Jose was not a member of decedent's household in Vineland, New Jersey, and therefore the conclusive presumption of dependency under N.J.S.A. 34:15-13(g) does not apply. He was supported by a common fund comprised of the $10 weekly payments remitted by decedent and the meager earnings of the grandfather and members of the latter's family in Puerto Rico. The judge of compensation found that the $10 payments constituted approximately 40% of the income of the grandfather's family.
The issue in this case is whether decedent's natural son, only four years of age at the time of his father's death, and being obviously incapable of consenting to the separation by which he was left by his father with the grandparents in Puerto Rico while his father lived with a second "wife" in New Jersey, comes within the legal meaning of a total dependent under the circumstances existing herein.
The view taken in some jurisdictions is that absent actual contributions for support, an obligation to support is not sufficient for a finding of dependency. 2 Larson, Workmen's Compensation Law (1961), § 63.31, p. 110. However, that does
not seem to be the law of New Jersey. In Comparri v. James Readding, Inc., 120 N.J.L. 168 (E. & A. 1937), the decedent wrongfully deserted his wife and infant daughter. Thereafter he pleaded guilty to an indictment charging desertion and the court ordered him to pay $5 per week for the support of his daughter who was then six years of age. Decedent died as a result of a compensable accident six years later. He was in arrears in support payments at the time of his death. On an appeal from an award to decedent's child as a total dependent, the court upheld a judgment ordering payments of $12.50 a week. Speaking of the test for dependency of a child upon the father the court stated,
"It is not governed in the slightest degree by the amount of money actually contributed to or expended upon the child. It is undoubted that the law imposed upon the decedent the duty of fully and wholly maintaining his daughter. * * * The undoubted fact that the father failed in his duty to provide for her did not render the daughter any less dependent." (at p. 170)
It is to be noted in Comparri that the child of the deceased employee obtained under the workmen's compensation law a greater sum than the father was actually ...