17 A.2d 762 | Md. | 1941
The question in this case is whether Marie Meyler, appellant, was a dependent of Michael Gibbons, her stepfather, at the time he sustained a fatal injury in the course of his employment by the Mayor and City Council of Baltimore, appellee. The Superior Court of Baltimore City, affirming an order of the State Industrial Accident Commission, held that she was not a dependent within the meaning of the Workmen's Compensation Act of Maryland.
Gibbons was injured on May 1st, 1939, while working for the Street Cleaning Department of Baltimore City, and died as a result of the injury on June 2d 1939. At the hearing of the claim of the widow, Gertrude Gibbons, before the Commission on September 7th, 1939, the appellant, then forty years of age, testified that her father died when she was six years old, and that she started to work in a paper box factory at the age of fourteen. After her mother married Gibbons, the three lived together. In April, 1937, she gave up her job at the factory, in accordance with the wish of her stepfather, to take care of her invalid mother and the home. Miss Meyler testified: "He asked me to stay home, and he would see that I was taken care of." He did not pay her a salary, but he gave eighteen dollars a week for the expenses of the household. She said that from this allowance she bought her clothes and had whatever spending money she needed. She declared that she was wholly dependent upon her stepfather for support at the time of his accident. On September 22d 1939, the Commission awarded compensation to the widow, payable at the rate of $13.20 per week, not to exceed $5000, and also allowed $125 for funeral expenses. Code, art. 101, secs. 48, 49. The award was affirmed after a trial before a jury in the Baltimore City Court. *214
On March 12th, 1940, Mrs. Gibbons died; and on May 22d 1940, her daughter petitioned the Commission to reopen the case to determine whether she was a dependent of her deceased stepfather and thus entitled to receive the balance of the compensation due under the award. She explained that she did not join in the original claim after his death because she relied upon her mother for support at that time. However, she complied with the requirement of the statute that whenever death results from an injury the parties entitled to compensation, or some one in their behalf, shall make application for the same within one year from the date of death. Code, art. 101, sec. 51. There is nothing in the statute which requires that all of the dependents of a deceased employee shall be ascertained and determined at the time any dependent's application is considered. If a dependent who has been awarded compensation dies before the full amount has been paid, and a petition is duly filed by another claimant for the unpaid balance, it then becomes the duty of the State Industrial Accident Commission to determine for the first time whether the new claimant was a dependent of the deceased employee, and in deciding that question the Commission must look at the conditions as they existed at the time of the injury. Community Baking Co.v. Reissig,
On her appeal from the order of the Commission, Miss Meyler presented two issues: (1) Was she "wholly dependent" upon her stepfather at the time of the accident? and (2) If not, was she "partially dependent" upon him? The trial judge, after the testimony had been read, directed the jury to answer "No" to both issues. He said that, even assuming all the testimony to be true, she could not be a dependent, either wholly or partially, within the meaning of the statute. She is now appealing from the judgment of the Superior Court affirming the order of the Commission. *215
While the Workmen's Compensation Act does not define the term "dependent," it declares that the following persons shall be presumed to be wholly dependent for support upon a deceased employee: (1) a wife, (2) an invalid husband, and (3) a child or children under the age of 16 years, or over said age if incapacitated from earning, living with or dependent upon the parent at the time of the injury or death. The Act then provides: "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 employee, but no person shall be considered as dependent unless such person be a father, mother, grandfather, grandmother, stepchild, or grandchild, or brother or sister of the deceased employee, including those otherwise specified in this Section." Code, art. 101, sec. 48.
Thus, according to the express direction of the Legislature, the question whether a stepchild of an employee should be adjudged a dependent must be determined from the circumstances of the case as they existed at the time of the injury. A "dependent" under the Workmen's Compensation Law may be generally defined as one who is relying wholly or in part upon a workman for the reasonable necessities of life at the time of the workman's accident. Grant v. Kotwall,
It was contended by counsel for the City that Miss Meyler was merely a maid and nurse for her mother under a contract. We are unable to accept that contention. We have already held in this court that where an employee turned over his earnings to his sister to buy the supplies for the home, and the sister did the house-work and had no other employment or means of support the evidence was legally sufficient to show that she was a dependent under the statute. Mech v. Storrs,
It was also contended that in the Indiana case the housekeeper had lost her health as a result of her duties in nursing her mother and sister and consequently would have been unable to work outside the home, while in this case the housekeeper had good health and could have supported herself, and therefore should not be classified, as a dependent. But mere ability to earn a livelihood does not necessarily preclude a person from being a dependant, the test of dependency, as a general rule is not whether a claimant was capable of supporting himself without the earnings of the workman, but whether he did in fact rely upon such earnings for his livelihood, in whole or in part, under circumstances indicating an intent on the part of the workman to furnish such support. Gonzales v. Chino Copper Co.,
When a similar question arose in Massachusetts in a case wherein a workman's daughter had received practically all his wages for keeping his house, the Supreme Judicial Court declared that the Industrial Accident Board should have based its conclusions on the facts as they existed, and not on "what might have been the case if her sense of filial duty had been weaker." Although she might have continued "to earn enough for her own support, and to be independent of him," if he had not needed her care, the Court held that such a fact was not "decisive as matter of law against her claim." In re Herrick,
The same rule has been followed by the Supreme Court of Wisconsin. When it appeared in that State that an unmarried woman 51 years old had been attending to her father's home and she had been supported by him, it was held that upon his death from an accidental injury she was entitled to compensation as his dependent within the meaning of the statute, even though "she was in good health, and undoubtedly could have earned her support elsewhere." Janesville Sand Gravel Co. v. IndustrialCommission,
We, therefore, hold that there was legally sufficient evidence to justify submission of the case to the jury on the questions of total and partial dependency. The credibility and weight of the testimony of witnesses are matters for the consideration of the jury. It appears from the record that only the testimony of the claimant and her mother was offered in the court below. The testimony at a trial on an appeal from the State Industrial Accident Commission is not confined to the testimony taken before the commission, but each side has the right to call its witnesses to support its case. Code, art. 101, sec. 70; R.H. Fraizer Sonv. Leas,
Judgment reversed, and new trial awarded, with costs. *220