Grant v. Kotwall

• Decision Date: 15 January 1919
• Docket Number: 87.
• Citation: 105 A. 758,133 Md. 573
• Parties: GRANT et al. v. KOTWALL.
• Court: Maryland Court of Appeals

105 A. 758

133 Md. 573

GRANT et al. v. KOTWALL.

No. 87.

Court of Appeals of Maryland

January 15, 1919

Appeal from Superior Court of Baltimore City; John J. Dobler, Judge.

Proceedings under the Workmen's Compensation Act for compensation for the death of August Kotwall, the employé, by Anna Kotwall his dependent mother, against Charles E. Grant, the employer and the Maryland Casualty Company, the insurer. From an order of the superior court of Baltimore city reversing an order of the State Industrial Accident Commission disallowing compensation, the employer and insurer appeal. Order affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and CONSTABLE, JJ.

A. J Lilly and Walter L. Clark, both of Baltimore, for appellants.

Edw. J. Colgan, Jr., of Baltimore (Frank J. Pintner, of Baltimore, on the brief), for appellee.

BURKE J.

This is a workman's compensation case, and is before us upon an appeal by the employer and the insurer from an order of the superior court of Baltimore city reversing an order of the state Industrial Accident Commission, which disallowed compensation to the claimant, and remanding the cause to that commission.

Augustus Kotwall, the deceased, was an unmarried man, and his trade was that of a painter. On the 9th day of May, 1916, he was working as a painter for Charles W. Grant. He died on May 9, 1916, as a result of an injury sustained that day in the course of his employment. His father, John Kotwall, filed a claim for compensation upon the ground of dependency, and after a hearing before the commission the claim was refused. Subsequently, Anna Kotwall, the mother of the deceased, filed a claim for compensation. A hearing was had upon this application, and on the 3d day of November, 1916, the state Industrial Accident Commission passed an order disallowing the claim, upon the finding that "the claimant in this case was not wholly, nor partially, nor in any wise dependent upon the deceased, and she is therefore not entitled to compensation arising out of the death of Augustus Kotwall." From this order an appeal was taken, and the case was heard by the court, without a jury, upon the transcript of the proceedings and evidence taken before the commission upon both applications.

At the hearing in the lower court the claimant offered one prayer, and the employer and insurer four. The court granted the claimant's prayer, and also granted the second, third, and fourth prayers of the employer and insurer, but refused their first.

The granted and refused prayers are here inserted:

Claimant's prayer: "The appellant prays the court that if it should find as a matter of fact that Annie Kotwall was partially dependent upon Augustus Kotwall for maintenance and support at the time of said Augustus Kotwall's death, then to rule as a matter of law that she is entitled to compensation therefor."

Employer's and insurer's prayer: "The employer and insurer pray the court to rule as a matter of law that there is no evidence in this case legally sufficient to show that claimant was dependent upon her deceased son, Augustus Kotwall, for support at the time of his death, May 9, 1916."

There is only one exception in the record, and that was taken to the granting of the claimant's prayer, and to the rejection of the employer's and insurer's prayer. It is not claimed that the mother was wholly dependent upon her deceased son, but it is insisted that she was partially dependent upon him.

There is no definition of dependency contained in the Workmen's Compensation Act of this state (Code Pub. Civ. Laws, art. 101), but it is provided that certain enumerated classes shall be presumed to be wholly dependent. The claimant is not one of that class. But it is provided by section 36, art. 101, Code, vol. 3, that:

"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 employé."

The question to be decided is this: Is there evidence in the record legally sufficient to show that the claimant was partially dependent upon her deceased son within the meaning of the Workmen's Compensation Act? On some few points the evidence of the claimant and her husband is in sharp conflict, but on the legal question presented by the record it is not our province to determine the credibility of the evidence of these witnesses on controverted questions of fact. The following facts appear to be established by satisfactory evidence: The family of John Kotwall, the father, consisted of his wife, the claimant, and four children, two sons and two daughters. One daughter was living in Detroit, Mich., and was earning her own livelihood. The other three children lived at home. For about five years prior to Augustus Kotwall's death, John Kotwall and his two sons each gave the mother $8 per week, with which she maintained the home and paid all the household expenses. For about three months during the winter the deceased son could not work, and during that time he did not make the weekly payment to his mother, but when he did go to work he paid her the amount of the arrearages. The amount paid was more than sufficient for his board and lodging. John Kotwall was in receipt of $64 per month from the government of the United States, and at the time of his son's death was employed by the Adjutant General of Maryland in a clerical position and received $40 or $50 per month. A few weeks after the death of his son he retired...