Bituminous Const. Co. v. Lewis

• Decision Date: 01 April 1969
• Docket Number: No. 147,147
• Parties: The BITUMINOUS CONSTRUCTION CO. et al. v. Lloyd R. LEWIS.
• Court: Maryland Court of Appeals

Page 1

253 Md. 1

251 A.2d 888

The BITUMINOUS CONSTRUCTION CO. et al. v. Lloyd R. LEWIS.

No. 147.

Court of Appeals of Maryland.

April 1, 1969.

Alfred M. Porth, Baltimore (Theodore B. Cornblatt, Baltimore, on the brief), for appellants.

Morton J. Owrutsky, Salisbury (Perdue, Owrutsky & Whitehead and Ronald G. Rayne, Salisbury, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, SINGLEY and SMITH, JJ.

MARBURY, Judge.

On November 1, 1966, Levin George Jones sustained an accidental injury in the course of his employment, and he died the same day. A claim was filed with the Workmen's Compensation Commission on behalf of his widow, Gladys H. Jones, and his grandson, Lloyd Richard Lewis (Dicky), the appellee, against the employer, The Bituminous Construction Company and its workmen's compensation insurer, Maryland Casualty Company. The Commission passed an order finding that the widow was partially dependent upon the deceased but disallowing the claim for dependency as to the grandson. Lloyd Richard Lewis seasonably appealed this adverse decision to the Circuit Court for Wicomico County where the case was tried before a jury. After the trial court denied the employer and insurer's motion for a directed verdict the jury found that the claimant was wholly dependent upon the deceased. The trial court also denied a motion for judgment n. o. v. or in the alternative for a new trial. The employer and the insurer noted a timely appeal to this Court.

At the time the deceased sustained his fatal injury he was living with his wife and his grandson, Dicky. The boy is mentally retarded and at the time of the trial he was nineteen years old. Until August 1965 he lived with his father who placed him in the Eastern Shore State Hospital. On February 24, 1966, the hospital released him into the deceased's custody. Mrs. Jones testified that she did not know that her husband was going to bring the boy to live with them. She further testified that her husband was earning approximately $80.00 per week at the time of the accident. Mr. Jones' employment was seasonal in nature and from about November to April he collected unemployment compensation in the amount of $48.00 per week. Mrs. Jones had been working in a shirt factory for over forty years and after payroll deductions she took home approximately $39.00 per week.

After Lloyd came to live with his grandparents, the deceased purchased his clothes, made arrangements and paid for his care while Levin and his wife were at work, provided his transportation, lunches and spending money. Mrs. Jones testified that she paid all the mortgage payments, which amounted to $35.00 per month on the house that she and her husband owned, as well as the utilities and insurance costs. These expenses did not change when the grandson came to live with the Joneses. In addition to making these payments, Mrs. Jones cleaned the house, did the laundry, repaired the clothing and prepared the meals.

On appeal, the only issue is whether the trial court was correct in refusing to rule as a matter of law that the claimant, Lloyd Richard Lewis, was not a total dependent under the Workmen's Compensation Law. This Court set forth the governing principles as to total dependency in Larkin v. Smith, 183 Md. 274, 280, 37 A.2d 340, 343:

'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.'

Succinctly stated, the alleged dependent 'must not have had a consequential source or means of maintenance in addition to what is received out of the earnings of the deceased.' Johnson v. Cole, 245 Md. 515, 520, 226 A.2d 268, 271. See Outten Bros. v. Dunn, 232 Md. 590, 194 A.2d 814.

Appellants argue...