45 A.2d 79 | Md. | 1945
Lead Opinion
On July 25, 1944, Isadore Rosenthal, the husband of the claimant, Nettie Rosenthal, appellee here, was killed in an accident while employed by the Bethlehem-Fairfield Shipyard, Inc., in the course of his employment. He left surviving him his wife, the appellee in this case, and two children.
After her husband's death, she filed a claim with the State Industrial Accident Commission who found that she was wholly dependent upon her husband, the deceased, for support. From that finding the employer and insurer appealed to the Superior Court of Baltimore City where the jury affirmed the finding of the State Industrial Accident Commission and to the issue "was the claimant, Nettie Rosenthal, wholly dependent upon Isadore Rosenthal, deceased," the jury answered "Yes." From a judgment in favor of the claimant, Nettie Rosenthal, for costs of suit after the Court affirmed the decision of the State Industrial Accident Commission, the appellants appeal here. *419
Appellants admit and concede that the claimant was partially dependent upon her deceased husband, but not totally dependent. The case comes to this Court on exceptions by the appellants to certain testimony and on the refusal of the trial court to grant the employer's and insurer's A prayer, which instructed the jury that the uncontradicted testimony in the case was that the claimant was employed at the death of her husband and earning wages averaging $30 per week, and that therefore as a matter of law she was not wholly dependent upon her husband at the time of his death, and therefore the answer of the jury to the issue shall be "No."
It is provided by Flack's Annotated Code, 1943 Supp., Article 101, Section 48:
"The following persons shall be presumed to be wholly dependent for support upon a deceased employee: A wife or invalid husband (`invalid' meaning one physically or mentally incapacitated from earning), * * *.
"In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in death of such empleyee, * * *."
Appellee makes no contention here that the presumption that she was wholly dependent for support upon her deceased husband is a conclusive presumption. This admission seems to be borne out in the case of Harvey v. George J. Roche Sons,
We have been referred to many out-of-state cases by the appellants. Except for the fact that most of these cases reiterate the familiar doctrine, admitted by appellants, that the question of dependency is one primarily of fact to be decided in every case upon the facts of that case, those cases are not helpful here. In many of those citeed, the question was whether or not a father, mother, sister, or brother was dependent upon the deceased. These are not helpful on account of the presumptions under the Maryland law. In others the husband and wife had been separated either by one deserting the other, or by the fact that the wife lived in a foreign country. The Workmen's Compensation statutes, upon which many of these cases are based, contain provisions different from those contained in the Maryland statute. In the case of Morris v. Yough Coal Supply Co.,
Judge Burke in the case of Grant v. Kotwall,
It was said further in the case of Meyler v. Mayor and CityCouncil,
Chief Judge Marbury in the opinion in the case of Larkin v.Smith, May 4, 1944,
In that case, where the person claiming total dependency partially owned the place in which she lived, this Court further said at pages 282 of 183 Md. and 343 and 344 of 37 A.2d, "A proper interpretation of the meaning of the statute can be found in the words of the Supreme Court of Minnesota in the case ofState ex rel. Splady v. District Court,
The deceased and the claimant in the case at bar were married in 1922, and the claimant had never worked until May, 1943, having been supported during her entire married life by her husband. The son moved to Baltimore in May, 1942; the husband, on July 1, 1942; and the wife joined her husband in Baltimore on August 8, 1942. After her son went into the Navy and about June, 1943, the appellee took a position with the United States Chemical Company for a period of about ten weeks and in August, 1943, she accepted employment with the Bethlehem-Fairfield Shipyard, Inc., appellant, and was employed by them on the date of her husband's death. Her average weekly wage during the period of her employment with the appellant corporation was $30. Her husband was earning on the average of $47.45 a week at the time of his death. Before his employment with the appellant corporation, he was making between $30 and $40 a week as a fruit peddler in New Jersey. She stated that when she came to Baltimore, she had no intention of working and that the only reason she took employment was because her boy was in the Navy and she was worried and wanted to occupy her mind. Her daughter was in school. She had no relatives in Baltimore, and she only intended to work until her son came home, because her husband made a living for her. She says that the bank account was first opened in her daughter's name, and later her name was put on it, and she deposited her husband's checks in that account. From this account the family expenses, including clothing, were paid. Her earnings were placed in this same account.
It is provided by Flack's Annotated Code, 1939, Article 101, Section 70: "In all Court proceedings under or pursuant to this Article, the decision of the Commission shall be prima facie correct and the burden of proof shall be upon the party attacking the same." The Commission having found in favor of the claimant, under this provision of the Code, the burden of proof was upon the appellants, and the appellants by asking that their A prayer be granted, are asking the Court to instruct a *424 verdict in favor of the parties who must carry the burden of proof. The testimony in the case is that of the appellee called as a witness by the appellants and that of the appellee testifying in her own behalf. Appellants admit that, generally speaking, questions of dependency are questions of fact and should be submitted to a jury. Appellants claim, however, that there are some cases such as the one at bar where the evidence is not conflicting, in which there is no dispute and in such cases the question becomes one of law. In other words, they contend in the instant case that the testimony presents a question of law and not one of fact.
Appellants rely strongly on the case of Harrison v. CentralConstruction Company,
In speaking of the case of Harrison v. Central ConstructionCompany, supra, where there was an agreed statement of facts, this Court said, through Judge Urner, in the case of Todd v.Easton Furniture Company,
In the case at bar the facts are not disputed but there is a serious dispute as to whether those facts infer that the wife was totally dependent upon her husband for support at the time of the accident. Alexander v. Tingle,
We are not called upon here to decide whether the appellee was totally dependent upon her husband for support. Our duty is simply to decide whether the jury should have been given the opportunity to determine that question upon the evidence presented. Todd v. Easton Furniture Company, supra,
Appellants in this case are faced with two presumptions, (1) that the decision made by the commission is correct, and (2) that the wife is presumed to be totally dependent for support upon the deceased, and are asking this Court to direct a verdict in favor of the parties who carry the burden of proof against those presumptions. We must therefore conclude that the undisputed facts in the case at bar could be interpreted by the jury as indicating that the claimant's work was only temporary or occasional, and that her intention was to depend solely on her husband's income in the future as she had in the past. So finding, the jury could decide that there was total dependency within the meaning of the Act. This Court cannot find as a matter of law that the claimant was not wholly dependent and therefore the trial judge was correct in refusing the employer's and insurer's A prayer by which the appellants sought to have the jury instructed that the uncontradicted testimony in the case was that the claimant was employed at the death of her husband and earning wages averaging $30 per week, and that therefore as a matter of law she was not wholly dependent upon her husband at the time of his death and therefore the answer of the jury to the issue should be "No." The Court was correct in refusing this prayer. Thirty-six exceptions were taken by appellants to the evidence offered in this case.
We believe that the Court was correct in admitting this testimony. These exceptions relate to the claimant's previous employment with the Chemical Company; whether her husband was employed during their entire married life; whether during that time he supported his *427 wife; why she came to Baltimore; what she intended to do about working when she came to Baltimore; what her husband's earnings were from the time she came to Baltimore until she went to work for Bethlehem-Fairfield in July or August, 1943; whether she was able to meet all expenses from her husband's earnings; what was being done with the money earned by her son between the time he came to Baltimore and the time he went into the Navy; for what purpose he gave the money to his mother after she went to work; what was done with her earnings; that her son was stationed at Bainbridge and Quantico and then went into the Navy and was sent overseas in January or February, 1944; that after she went to work she gave her son $10 or $15 a week; that her son came to Baltimore every two weeks; what was done with the balance of her earnings until the time of her husband's death; from what funds the household expenses and her support were taken; that none of her support was taken from her earnings but came out of her husband's money; that up until the time of her husband's death she did not receive any allotment or payment from her son or from the Government; that she deposited all of her husband's money in excess of what it took to run the house; that she saved between $20 and $25 a week out of her husband's earnings; that she took employment because her son went into the Navy and she was worried and wanted to occupy her mind; that she had no other relatives in Baltimore; that when she accepted work at the Chemical Company she took the work on account of being worried about her son and only intended to keep her job until he came home because her husband was making a living for her. All of this evidence was properly admitted to show the factual condition of the family as to wages and employment, and all of which reflected on the question as to whether the wife was wholly dependent upon her husband for support at the time of the injury.
As we find no error, the judgment will be affirmed.
Judgment affirmed, with costs. *428
Dissenting Opinion
In some jurisdictions, in some circumstances (e.g., when husband and wife live together) the presumption of total dependency is a conclusive presumption, i.e., not a presumption at all, but a rule of substantive law, that the widow is entitled to compensation regardless of dependency. In Maryland the presumption is a prima facie presumption, i.e., a true presumption, which affects only the burden of proof, whether (a) in the primary sense of the risk of non-persuasion or (b) in the secondary sense of the burden of going forward.
In the instant case presumptions (of total dependency and of correctness of the Commission's decision) and burden of proof play no real part. They require us to assume the truth of the claimant's testimony and of any permissible inferences favorable to her. Regardless of presumptions, we could do no less. All the evidence comes from the claimant herself. Not only is her testimony uncontradicted, but the facts are essentially undisputed. Whether on the undisputed facts she was totally dependent is a pure question of law. Moore v. Clarke,
Undisputed facts are that: The husband came from New Jersey to Baltimore on July 1, 1942; the wife followed on August 8, 1942. In New Jersey "he made $30 sometimes $40 sometimes less a week." Out of that she would save $15 — or more. From the time the husband came to Baltimore until July or August, 1943, his average weekly earnings were about $47. On July 25, 1944, when he was killed, they were about the same; previously for a time he worked seven days a week and made about $60. The wife worked for Bethlehem-Fairfield from August, 1943, till his death, and previously for another employer for about ten weeks. On July 25, 1944, her average weekly wage was $30. She then had about $3,800 in bank, including $800 her son had given *429 her to hold for him when he went into the service. She never worked before the War, and did not intend to continue to work after her son got back.
Total or partial dependency is a question of degree. On the principle de minimis inconsequential temporary resources of the dependent are disregarded. Larkin v. Smith,
Judge HENDERSON authorizes me to say that he concurs in this dissent.