Harvey v. George J. Roche & Son

• Decision Date: 07 May 1925
• Docket Number: 5,6.
• Citation: 129 A. 359,148 Md. 363
• Parties: HARVEY v. GEORGE J. ROCHE & SON ET AL. GEORGE J. ROCHE & SON ET AL. v. HARVEY ET AL.
• Court: Maryland Court of Appeals

129 A. 359

148 Md. 363

HARVEY v. GEORGE J. ROCHE & SON ET AL.

GEORGE J. ROCHE & SON ET AL. v. HARVEY ET AL.

Nos. 5, 6.

Court of Appeals of Maryland

May 7, 1925

Appeals from Superior Court of Baltimore City; George A. Solter Judge.

"To be officially reported."

Conflicting claims under Workmen's Compensation Act by Sarah McK. Harvey and Almea Harvey, sister and widow, respectively, of William T. Harvey, deceased, opposed by George J. Roche & Son, employer, and the Maryland Casualty Company, insurer. From the judgment affirming award of compensation by the commission, Sarah McK. Harvey and the employer and the insurer all appeal. Judgment in each case affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT PARKE, and WALSH, JJ.

Guy B Brown, of Baltimore, for Sarah McK. Harvey.

J Abner Sayler, of Baltimore, for Almea Harvey.

Charles S. Lerch and Austin J. Lilly, both of Baltimore, for George J. Roche & Son and Maryland Casualty Co.

BOND C.J.

William T. Harvey died as the result of injuries arising out of and in the course of his employment as a painter by George J. Roche & Son, and this controversy has arisen from conflicting claims of his widow and his sister to compensation under the Workmen's Compensation Act (Code Pub. Gen. Laws 1924, art. 101). The widow claims compensation as one wholly dependent upon the deceased workman for her support, and the sister claims as one partially dependent. The witnesses, before the commission, and on appeal before the superior court of Baltimore city, 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. The wife and the witnesses on her behalf testified that the husband continued to pay her substantial sums of money up to the time of his death, and that, except for $10 a week paid her by a boarder, she had no other support. And in opposition to this it was testified by several friends or acquaintances of the husband that he denied giving his wife any support and repudiated all obligation to support her. There was also evidence tending to prove that the deceased workman regularly gave his sister about $5 a week for her support, and that she had only $6 a week besides.

The commission awarded compensation to the widow as one wholly dependent, and denied compensation to the sister. And the jury on appeal, answering specific issues submitted to them, rendered a verdict that the widow was wholly dependent upon the deceased for support, and that the sister was not at all dependent upon him. The sister, the employer, and the insurer all appeal from the judgment based upon that verdict.

There was one exception taken to a ruling on the admissibility of evidence. After having read to the jury the testimony of three witnesses taken before the commission to the effect that the deceased had, some time before his death, denied having given any support to the wife, and that he repudiated any obligation to support her, the employer and the insurer and the sister desired to call these witnesses to repeat that testimony before the jury, and, upon objection, the court refused to permit it. The objection and the ruling appear to have been based altogether on the ground that repetition of the evidence would be improper.

In Frazier v. Leas, 127 Md. 572, 96 A. 764, and Solvuca v. Ryan & Reilly Co., 131 Md. 265, 101 A. 710, this court held that the right to a jury trial on questions of fact raised on appeal (section 56 of the act), carried with it the right to produce witnesses to give any proper oral evidence before the jury. But, at the same time, the unreasonableness of giving a jury the same testimony twice, once from a written transcript of it, and again from the same witnesses in the flesh, seems obvious; and hardly anything short of a positive statutory enactment would justify our holding that the Legislature intended such a practice. In section 56 of the act concerning proceedings on appeal, there is no requirement that the transcript of testimony taken before the commission shall be read to the jury. There is no mention of that testimony. The act evidently contemplates that the case may be presented to the court, without a jury, upon the proceedings and testimony taken before the commission; but nothing in it requires that the record of those proceedings and that testimony be submitted to the jury when a jury trial is had on the facts. The jury trial provided for would seem to be, not a review of the decision of the commission, but an original trial on the questions of fact submitted, in which the evidence is to be presented as in any other jury trial. Cf. Miller v. State Ind. Acc. Com., 84 Or. 507, 159 P. 1150, 165 P. 576; Raney v. State Industrial Acc. Comm., 85 Or. 199, 203, 166 P. 523. Nothing requires or justifies presenting any of it twice that would not require or justify it regularly in any jury trials. And if it has once been presented to the jury by the party producing it, in a manner which is proper, or not objected to, that would seem to give the party all the hearing to which he is entitled on so much of his case. And so, having read to the jury from the record of the commission all of the testimony of these witnesses, he should not call them to repeat it. We think the action of the court in excluding it the second time was correct.

The further exceptions bring up for review instructions granted or refused on the two claims. Section 36 of the act provides that in case of death from injury "the benefits shall be in the amounts and to the persons following: * * * If there are wholly dependent persons at the time of death, the payment shall be 66 2/3 per cent. of the average weekly wages, not to exceed, however," limits specified. And "if there are no wholly dependent persons at the time of the death, but are partly dependent persons, those partly dependent shall receive compensation as follows."

The court below, by granting the ninth prayer of the employer and the insurer, instructed the jury that, if they found the widow had been wholly dependent on the deceased, then the sister, even if partly dependent, would not be entitled to compensation under the act; and the granting of this prayer is the main ground of...