Havre De Grace Fireworks Co. v. Howe

• Decision Date: 17 January 1955
• Docket Number: No. 63,63
• Citation: Havre De Grace Fireworks Co. v. Howe, 110 A.2d 666, 206 Md. 158 (Md. 1955)
• Parties: HAVRE DE GRACE FIREWORKS COMPANY, Inc., employer, and State Accident Fund, insurer, v. Catherine HOWE, Jacob Charles Howe and Ernest Howe, infant children of Jack Charles Howe, deceased.
• Court: Maryland Court of Appeals

Page 158

206 Md. 158

110 A.2d 666

HAVRE DE GRACE FIREWORKS COMPANY, Inc., employer, and State Accident Fund, insurer, v. Catherine HOWE, Jacob Charles Howe and Ernest Howe, infant children of Jack Charles Howe, deceased.

No. 63.

Court of Appeals of Maryland.

Jan. 17, 1955.

Philip T. McCusker, Baltimore, Sp. Atty. for State Accident Fund (Edward D. E. Rollins, Atty. Gen., and Harry A. Cole, Baltimore, Sp. Atty. for State Accident Fund, and A. Freeborn Brown, Bel Air, on the brief), for appellants.

J. Howard Holzer and Paul J. Yeager, Baltimore, for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

On January 16, 1953, Jack Charles Howe, an employee of Havre de Grace Fireworks Company, Inc., was injured in an explosion in the course of his employment and he died four days later as a result of his injuries. Claims were filed with the State Industrial Accident Commission by his widow, Minnie P. Howe, who was his second wife, and by three infant children by his first wife.

It was shown at the hearing before the Commission that the employee's first wife died in 1944, and shortly afterwards the children were placed in the General German Orphan Home in Catonsville. He married again in 1948. His second wife supplemented his income by working at the fireworks plant. Yet, after the children were placed in the orphanage he contributed very little, except incidentals, toward their support.

On November 16, 1953, the Commission found that the widow and three children of the employee were all partially dependent upon him for support at the time of his accidental injury and death, and passed an order requiring the employer and the State Accident Fund, insurer, to pay compensation to the widow at the rate of $16 per week for 125 weeks, not to exceed the sum of $2,000, and to the children at the rate of $8 per week for 125 weeks, not to exceed the sum of $1,000. The claimants appealed from that award to the Circuit Court for Harford County.

At the trial in the Circuit Court, two issues were presented to the jury: (1) Was the widow totally dependent upon the deceased? and (2) Were the children totally dependent upon the deceased?

At the close of the claimants' case, the employer and the insurer requested the Court to instruct the jury that there was no evidence legally sufficient to show that the claimants were wholly dependent upon the deceased at the time of his injury, and therefore to direct a finding affirming the order of the State Industrial Accident Commission. The trial judge overruled their motion.

On the first issue the jury answered 'No,' thus deciding that the widow was only partially dependent. On the second issue the jury answered 'Yes,' deciding that the children were totally dependent.

The employer and the insurer filed a motion for a judgment n. o. v. or for a new trial, and the judge also overruled that motion. Judgment was then entered affirming the order of the Commission in part and reversing it in part. The widow appealed from the first part of the judgment, and the employer and the insurer appealed from the second part. The widow subsequently dismissed her appeal.

We now have before us the appeal of the employer and the insurer, who contend that the trial judge erred in refusing to rule that the children were not totally dependent upon the employee at the time of his injury, and in overruling the motion for a judgment n. o. v.

The Maryland Workmen's Compensation Act, as originally enacted in 1914, Laws 1914, ch. 800, and as amended in 1945, Laws 1945, ch. 335, prescribed the method of determining dependency as follows:

'The following persons shall be presumed to be wholly dependent for support upon a deceased employee: A wife or invalid husband * * *, a child or children under the age of sixteen years (or over said age if physically or mentally incapacitiated from earning) living with or dependent upon the parent at the time of the injury or death.

'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, * * *.'

Thus during the period of 33 years, from 1914 until June 1, 1947, when Chapter 895 of the Laws of 1947 took effect, the Act directed that the wife of a deceased employee was presumed to be wholly dependent upon him for support, and a child under the age of 16 was presumed to be dependent upon him if he was living with him or was dependent upon him at the time of the fatal injury.

By the Act of 1947 the Legislature struck out the provision for presumption of dependency, and made every question of dependency a question of fact to be determined by the Commission. Since 1947 the Act has provided as follows: 'In all cases, questions of dependency, in whole, or in part, shall be determined by the Commission in accordance with the facts in each particular case existent at the time of the injury resulting in death of such employee.' Laws 1947, ch. 895, Laws 1949, ch. 461, Laws 1951, ch. 451, Code 1951, art. 101, sec. 35(8)(d).

The presumption of dependency raised by the Maryland Act was always held to be a rebuttable presumption. Our view was in accord with the ruling in England that children living apart from their father and not receiving any support from him should not be regarded as dependents under the Workmen's Compensation Act. In Polled v. Great Northern Ry. Co., 1912, W.C. & Ins.Rep. 379, 5 Butterworth's W.C.C. 115, where the workman who was killed had lived apart from his wife and a daughter, and had once given his wife five pounds, which she afterwards stated in a letter she considered as a loan, and had given his daughter one pound and a pair of boots, the trial judge ruled that the widow and the daughter were partially dependent upon the workman because of the presumption of dependency of widows and of children under the age of 21. But the Court of Appeal held that the trial judge had in effect 'misdirected himself.'

The Maryland Act was different in this respect from the Rhode Island Act, Gen. Laws 1923, c. 92, art. 2, § 7, which provided that a child shall be conclusively presumed to have been wholly dependent for support upon the parent with whom he lived or upon whom he was dependent at the time of his death. Accordingly in Martin v. Narragansett Electric Lighting Co., 49 R.I. 265, 142 A. 225, where the workman who was accidentally killed had been divorced and his two children went to live with their grandmother, and he sent her $3 each week and frequently visited her and gave her $10 to be applied to their support, the Supreme Court of Rhode Island pointed out that, while the children were almost entirely dependent upon the charity of their grandparents, and only partially dependent upon their father, nevertheless by force of the statute they were deemed to be wholly dependent upon him.

The Workmen's Compensation Act of Indiana contained a provision that a child under the age of 18 shall be conclusively presumed to be wholly dependent for support upon a parent 'with whom he or she may not be living at the time of the death of such parent, but upon whom, at such time, the laws of the state impose the obligation to support such child.' Laws 1915, c. 106, § 38, as amended by Laws 1919, c. 57, § 1. In Vigo American Clay Co. v. Kelley, 82 Ind.App. 675, 147 N.E. 301, it was held that the daughter of a deceased workman was entitled to compensation for his death although she had not been living with him and had...