Bethlehem-Fairfield Shipyard, Inc. v. Rosenthal

• Decision Date: 18 December 1945
• Docket Number: 22.
• Citation: 45 A.2d 79,185 Md. 416
• Parties: BETHLEHEM-FAIRFIELD SHIPYARD, Inc., et al. v. ROSENTHAL.
• Court: Maryland Court of Appeals

45 A.2d 79

185 Md. 416

BETHLEHEM-FAIRFIELD SHIPYARD, Inc., et al. v. ROSENTHAL.

No. 22.

Court of Appeals of Maryland

December 18, 1945

Dissenting Opinion December 29, 1945.

Appeal from Superior Court of Baltimore City; Emory H. Niles, Judge.

Proceeding under the Workmen's Compensation Act by Nettie Rosenthal for the death of her husband, claimant, opposed by Bethlehem-Fairfield Shipyard, Inc., employer, and Maryland Casualty Company, insurer. From a judgment in favor of claimant after affirming the decision of the State Industrial Accident Commission, the employer and insurer appeal.

Affirmed.

MARKELL and HENDERSON, JJ., dissenting.

Robert E. Coughlan, Jr., of Baltimore, for appellants.

Max R Israelson, of Baltimore, for appellee.

Before DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS Judge.

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.

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 employee, * * *.'

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, 148 Md. 363, 129 A. 359, where the Court did not treat this presumption as conclusive in passing on a widow's claim for total dependency. In that case the witnesses agreed that at the time of the injury and death, the husband and the wife had been living apart for a year or more, but there was some conflict as to the reason for the separation. It was said in that case at pages 368 and 369 of 148 Md., at page 361 of 129 A., 'It is provided by section 43 of the act that a wife who has deserted the employee, her husband, for more than one year prior to the time of injury, shall not be a beneficiary. But the testimony of the wife here tended rather to show desertion by the husband, and there has been no question of law presented upon any objection to the wife's claim on the ground of desertion by her. There was a conflict of evidence on the claim of actual contributions to her support by the husband, but as the wife testified to contributions averaging $50 a month up to the time of the husband's death, and that except for that she had no income or support other than board paid by two women who lived in the house, and as this was in part corroborated by other witnesses produced on the wife's behalf, it is our opinion that there was evidence legally sufficient for a finding of entire dependency by the wife, * * *.' See also case of State Industrial Accident Commission v. Downton, 135 Md. 412, 415, 109 A. 63.

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 cited, 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., 266 Pa. 216, 109 A. 914, at page 915, the Court said, 'If the finding of dependency is based on any evidence or on an inference fairly deducible therefrom, the award must be sustained, though we might differ from the conclusion thus reached.'

Judge Burke in the case of Grant v. Kotwall, 133 Md. 573, 105 A. 758, 760, points out that there is no definition of dependency contained in the Workmen's Compensation Act of this State. In that case he quoted from In re Carroll, 65 Ind.App. 146, 116 N.E. 844, the following: "Stated generally, a dependent is one who looks to another for support and maintenance; one who is in fact dependent--one who relies on another for the reasonable necessities of life." It was said in the case of State Industrial Accident Commission v. Downton, supra, 135 Md. 412, at pages 415 and 416, 109 A. 63, at page 65, 'In re Carroll , 116 N.E. 844; Parson v. Murphy, 101 Neb. 542, 163 N.W. 847, L.R.A.1918F, 479; Sweet v. Sherwood [Ice Co.], 40 R.I. 203, 100 A. 316, and in the Nebraska and Rhode Island cases, it is held that the cases 'do not baldly hold that the legal obligation determines the question of dependency, but that such legal obligation must be coupled with a reasonable probability that such obligation will be fulfilled.' [The same view will be found in Blanton v. Wheeler & Howes Co., 91 Conn. 226, 99 A. 494, Ann.Cas.1918 B, 747, in which last case also the English adjudications will be found collected.]'

It was said further in the case of Meyler v. Mayor and City Council, 179 Md. 211, at page 217, 17 A.2d 762, at page 765, 'But mere ability to earn a livelihood does not necessarily preclude a person from being a dependent. The test of dependency, as a general rule, is not whether a claimant was capable of supporting himself without the earnings of the workmen, 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., 29 N.M. 228, 222 P. 903, 905.'

Chief Judge Marbury in the opinion in the case of Larkin v. Smith, May 4, 1944, 183 Md. 274, 37 A.2d 340, at page 343, adopted the rule as laid down in Bloomington-Bedford Stone Co. v. Phillips, 65 Ind.App. 189, 116 N.E. 850, "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."

In that case, where the person claiming total dependency partially owned the place in which she lived, this Court further said at pages 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 of State ex rel. Splady v. District Court, 128 Minn. 338, 151 N.W 123, 124. 'It may certainly be argued with some force that one who owns his home, or for whom others perform friendly services, is not, technically speaking, 'wholly dependent' upon the cash received from the wages of the worker of the family. Nor is one who receives help from a charitable organization, or from neighbors. But we cannot suppose that the Legislature intended that such a person should be considered only a 'partial dependent.' Giving the act a reasonable and liberal construction, our conclusion is that the trial court was justified in finding that plaintiffs were wholly dependent upon the deceased for their support.' The trial court, in our opinion, was entirely correct in refusing to grant the prayer No. 1 of the employer and insurer, and in his statement to the jury that he did not think the legislature intended such an illiberal construction of the word 'wholly' as contended for by the appellants.' This Court has therefore adopted a different view from that followed by the Massachusetts Court in the case of In re MacDonald (In re Employers' Liability Assurance Corporation), 229 Mass. 454, 118 N.E. 949, L.R.A.1918F, 493,...