Summary
In Brooks v. Bethlehem Steel Co., 199 Md. 29, 34, supra, Judge Markell, speaking for the Court, noted that the claimants depended upon the statement from the Larkin Case used verbatim by the trial court in his charge in this case and then, referring to the Larkin and Rosenthal Cases, said: "In any aspect the cases cited are not applicable to the facts in the instant case.
Summary of this case from Knibb v. JacksonOpinion
[No. 57, October Term, 1951.]
Decided January 9, 1952.
WORKMEN'S COMPENSATION — Dependency on Deceased Workman — Legal or Moral Duty to Support — Not Necessary or Sufficient. Legal or moral duty to support is not necessary to constitute dependency on a deceased workman within the meaning of the Workmen's Compensation Act, Code (1947 Supp.), Art. 101, § 35, and, in the absence of actual support, is not sufficient. p. 33
WORKMEN'S COMPENSATION — Total Dependency of Children on Deceased Workman — Evidence Insufficient to Show. The evidence was insufficient to show "total dependency" on a deceased workman within the meaning of the Workmen's Compensation Act, Code (1947 Supp.), Art. 101, § 35, where the workman provided five dollars a week for the support of each of two children, one legitimate and the other illegitimate, and occasionally gave each child money for extras, and the parent of the illegitimate child and grandparent of the legitimate child testified that $5.00 a week did not support either child. Thus, the trial court properly granted a judgment n.o.v. to the effect that the children were not wholly dependent, affirming the decision of the State Industrial Accident Commission that the children were partially dependent, after a jury had returned a finding of total dependency. pp. 31-34
WORKMEN'S COMPENSATION — Burden of Proof to Show Incorrectness of Commission's Decision Is Burden of Persuasion. The statutory burden of proof that the decision of the State Industrial Accident Commission, Code (1947 Supp.), Art. 101, was incorrect is a burden of persuasion, which may be sustained by satisfying the jury, on appeal from the Commission, from the same evidence on which the Commission made its decision. No additional evidence is necessary. p. 34
WORKMEN'S COMPENSATION — Dependency of Parents on Deceased Workman — Evidence Legally Sufficient to Go to Jury on. The evidence was legally sufficient to go to the jury on the question of the dependency of the parents of a deceased workman on the workman within the meaning of the Workmen's Compensation Act, Code (1947 Supp.), Art. 101, § 35, where the parents argued that the uncontradicted evidence showed that they each received ten dollars a week from their son, plus other assistance, and that this was more than board and lodging in the household, but the opposing contentions presented jury questions, both as to the truth of the mother's testimony and as to whether the payments constituted support or only board and lodging. Thus, judgment was properly entered on a jury's verdict that the parents were not dependent on the deceased workman at all, as against the parents' contention that the evidence was legally insufficient to overcome the presumption of correctness of the decision of the State Industrial Accident Commission that they were partially dependent. pp. 34-35
J.E.B.
Decided January 9, 1952.
Appeal from the Court of Common Pleas of Baltimore City (MANLEY, J.).
Proceeding under the Workmen's Compensation Act, Code (1947 Supp.), Art. 101, § 35, by Joyce B. Brooks, infant daughter of Herman Brooks, deceased, by Viola E. Wainwright, her grandmother, by Irene Johnson, infant daughter of deceased, by Barbara Edwards, her mother, and by Early Brooks and Minnie Brooks, parents of deceased, claimants, opposed by the Bethlehem Steel Company, employer and self-insurer. The State Industrial Accident Commission found that all four claimants were partially dependent on deceased. From a judgment entered on a jury's verdict finding that the parents were not dependent on deceased at all, and from the granting of a judgment n.o.v. to the effect that the children were not wholly dependent on deceased, claimants appeal.
Judgment affirmed on all appeals.
The cause was argued before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.
Maurice J. Pressman, with whom was William Hoffenberg on the brief, for Joyce B. Brooks.
Edwin J. Wolf, with whom was W. Walter Farnandis on the brief, for Irene Johnson.
Walter C. Herlihy, with whom were Paul Berman, Theodore B. Berman and Sigmund Levin on the brief, for Early Brooks and Minnie Brooks.
Jesse Slingluff, Jr., for the appellee.
These are appeals from a judgment which reversed as to two claimants on the jury's verdict, and affirmed as to two others on judgment n.o.v., a decision of the State Industrial Accident Commission.
Herman Brooks was injured on October 11, 1948, while working for Bethlehem Steel Company, and died a few days later. He left surviving an illegitimate child, Irene Johnson, eleven years old, a legitimate child, Joyce, seven years old, and his parents. He had killed his wife when Joyce was eight months old, and had been convicted of murder and sentenced to eighteen years imprisonment. On February 5, 1948 he was paroled, and for about two months worked and lived at the Sheppard-Pratt Hospital. In April he went to work in the Montebello tunnel and there made an average of $65 a week. He was laid off about the first of September and was out of work for several weeks. He then went to work for Bethlehem Steel Company but died before he received any wages.
After he left the Sheppard-Pratt he lived with his parents. His sister, her husband and their four children also lived there. His mother testified that he gave her and his father each ten dollars a week while he was working at the tunnel and "would also pay for the milk and would buy groceries and he helped me with the furniture bill and telephone bill"; it was he only who contributed to her support in the spring and summer of 1948.
Irene lived with her mother, who is married. While he was in the penitentiary he gave her mother "a couple of checks", while he was at the Sheppard-Pratt he once gave her ten dollars and once fifteen dollars. After he went to work in the Montebello tunnel the mother would get five dollars every week from him; if he missed a week he would make it up. The mother testified that, "In addition to the money Brooks bought her shoes, skirt, and a blouse"; she does not know definitely how often these were bought but once in a while; she got no money from him after he left the tunnel company; she had to add to what he gave her to support the child; five dollars a week would not support the child; she did not get more than five dollars a week from him; the last money she got from him was the first part of September. Irene testified that her father sometimes gave her quarters or dollars, gave her "money for a trip one time", bought her "a pair of shoes and a skirt and something else"; sometimes he gave her dollars and quarters for herself to go to the movies with and buy ice cream or get herself something; sometimes he took her to the movies.
Joyce lived with her maternal grandmother. The father gave five dollars a week in substantially the same circumstances as he did for Irene. The grandmother testified that five dollars a week did not support the child. Joyce testified that he would sometimes give her a quarter and sometimes a dollar.
Claims were filed for both children and both parents. The commission found that all four were partially dependent. On appeal (by whom does not appear) the jury found that both children were wholly dependent and the parents were not dependent at all. The employer had asked a directed verdict that the children were not wholly dependent; the court granted a judgment n.o.v. to this effect, thus affirming the commission's decision. As to the parents, the commission's decision was reversed on the jury's verdict. All four claimants have appealed.
The only questions here presented are the legal sufficiency of the evidence to show that the children were wholly dependent (which they claim) and to overcome the presumption in favor of the commission's decision that the parents were partially dependent (which they claim).
Section 35 of the act, before it was amended in 1947, contained an exclusive enumeration of dependents, among them "wife" and "child or children", and declared that a wife and in specified circumstances a child or children should be presumed to be wholly dependent. In section 67 the definition of "child" and "children" had been amended in 1920 so as to include illegitimate children in specified circumstances. Only in the circumstances specified in section 67 did "children" in section 35 include illegitimate children. Dukes v. Eastern Tar Products Corporation, 197 Md. 564, 80 A.2d 39. When section 35 was amended in 1947 the exclusive enumeration of beneficiaries and the presumptions of total dependency of wife and children were omitted and questions of dependency, in whole or in part, in all cases, were made questions of fact, construed by this court to mean the fact of receipt of pecuniary support, whether in money, services or otherwise in money's worth. Legal or moral duty to support is not necessary, and in the absence of actual support is not sufficient, to constitute dependency. Kendall v. Housing Authority of Baltimore, 196 Md. 370, 76 A.2d 767. The definition of "child" and "children" in section 67 was not changed, but ceased to be relevant to section 35, as amended.
Reporter's Note: This section was previously codified as Code (1939), Art. 101, § 48.
Acts of 1947, ch. 895.
Acts of 1920, ch. 456.
In the instant case the children invoke the statement, twice quoted by this court, "Total dependency exists where the dependent subsists entirely on the earnings of the workman; but in applying this rule courts have not deprived claimants of the rights of total dependents, when otherwise entitled thereto, on account of temporary gratuitous services rendered them by others, or on account of occasional financial assistance received from other sources, or on account of other minor considerations or benefits which do not substantially modify or change the general rule as above stated." Larkin v. Smith, 183 Md. 274, 280, 37 A.2d 340, 343; Bethlehem-Fairfield Shipyard v. Rosenthal, 185 Md. 416, 421-422, 45 A.2d 79. In the Rosenthal case the opinion of the court was based in part on the statutory presumption of total dependency of the wife. In any aspect the cases cited are not applicable to the facts in the instant case. The children are not, on account of temporary services or occasional assistance or other minor considerations, "deprived of the rights of total dependents, when otherwise entitled thereto". On the undisputed facts they were dependent primarily on the grandmother and mother respectively, and never were entitled to the rights of total dependents. There is no occasion to discuss or mention decisions in other states under statutes materially different, in dependency provisions, from the Maryland act, either before or since 1947. The evidence is quite insufficient to show total dependency.
The parents contend that the evidence is legally insufficient to overcome the presumption of correctness of the commission's decision that the parents were partially dependent. We assume that this question is presented by a request, not altogether clear, for a ruling. The statutory burden of proof that the commission's decision was incorrect is a burden of persuasion, which may be sustained by satisfying the jury from the same evidence on which the commission made its decision. No additional evidence is necessary. Moore v. Clarke, 171 Md. 39, 45-46, 187 A. 887, 107 A.L.R. 924, Williams Construction Co. v. Bohlen, 189 Md. 576, 580, 56 A.2d 694. It is argued that the uncontradicted evidence shows that the parents each received ten dollars a week, plus other assistance, and that this is more than board and lodging in that household. The opposing contentions present jury questions both as to the truth of the mother's testimony and as to whether the payments constitute support or only board and lodging. The evidence was legally sufficient to go to the jury on the question of dependency of the parents.
Judgment affirmed, with costs, on all appeals.