James Gibbons Co. v. Hess

• Decision Date: 13 November 1979
• Docket Number: No. 254,254
• Citation: 407 A.2d 782,44 Md.App. 216
• Parties: The JAMES GIBBONS COMPANY et al. v. Shirley HESS.
• Court: Court of Special Appeals of Maryland

Page 216

44 Md.App. 216

407 A.2d 782

The JAMES GIBBONS COMPANY et al. v. Shirley HESS.

No. 254.

Court of Special Appeals of Maryland.

Nov. 13, 1979.

R. Roger Drechsler, Baltimore, with whom were Lord, Whip, Coughlan & Green, P. A., Baltimore, on the brief, for appellants.

Andrew H. Kahn, Baltimore, with whom was Jerome Blum, Baltimore, on the brief, for appellee.

Argued before MELVIN, LISS and WEANT, JJ.

LISS, Judge.

Grady Garland, an employee of the James F. Gibbons Company, the appellant herein, sustained an accidental injury on December 16, 1976 arising out of the course of his employment which resulted in his death. Shirley Hess filed a claim for dependency benefits on behalf of Angela A. and Grady Scott Garland, appellees, who are the illegitimate children of Mrs. Hess and Mr. Garland. After a hearing, the Workmen's Compensation Commission filed an order in which it found that Garland's death was the result of an accidental injury arising out of the course of his employment. The Commission also concluded, however, that the decedent left no dependents, thereby denying the children's claim for compensation benefits.

Mrs. Hess filed an appeal from the order of the Workmen's Compensation Commission in the Baltimore City Court where issues raised as to the nature and extent of dependency were submitted to a jury. At the close of the claimants' case, the appellant's motion for a directed verdict was denied. The jury, at the conclusion of the trial, found that the claimants were wholly dependent upon the deceased. The trial court after a hearing, denied appellant's motion for a judgment n.o.v. or a new trial, and appellant promptly filed a notice of appeal to this Court.

The issue raised by this appeal is:

Whether the Baltimore City Court erred in denying the employer and insurer's motions for a directed verdict and allowing to stand the jury's verdict that the claimants were wholly dependent upon the deceased at the time of his accidental injury and death.

To a substantial extent, the facts in the case are undisputed. Shirley Hess and the deceased, Grady Garland, were never married, but they were the parents of two children, Angela, born on July 20, 1968, and Grady Scott, born on June 22, 1975. These two children, Mrs. Hess, and Mrs. Hess's four other children from a previous marriage lived with the deceased from 1967 to 1975. In September of 1975, after an argument between Mrs. Hess and Mr. Garland, Mr. Garland left the home to live with his sister. It is undisputed that from September of 1975 until Garland's death on December 16, 1976 the parties did not live together.

The evidence presented at trial showed that Shirley Hess and Grady Garland entered into a paternity agreement in September of 1975 by which Garland agreed to pay the sum of $15.45 per week for the support of each of the children, a total payment of $138.27 per month. A decree was entered evidencing this agreement. Mrs. Hess was then receiving a grant from the Department of Social Services in the amount of $308.00 for the support of the members of her family. As a condition for the continuation of her Social Services grant, Mrs. Hess was required to sign a "form 80" allowing the agency to receive support payments on her behalf, the payments to come out of the weekly payments to be made by the deceased pursuant to the paternity decree. The evidence also indicated that during the period of the deceased's separation from his children he would visit them two to three times a week, and on those occasions Mr. Garland and Mrs. Hess would "go shopping for groceries, medicine, if the children needed them, anything that they needed," and "Mr. Garland also bought the children clothing, birthday presents . . . generally anything . . . that they needed."

A number of payments were made pursuant to the decrees, and at the time of his death the decedent was in arrears on the required payments. An agent for the Maryland Parole and Probation Department testified that the Department of Social Services grant was made subject to the understanding that when Garland made any payments pursuant to the paternity decree, these funds would be paid to the Social Services Department without any increase or decrease in the grant.

In was conceded by the agent that no demand for payment was ever made on Mr. Garland prior to his death, and that Mrs. Hess was never notified of the status of Mr. Garland's payments.

There was additional testimony by Mrs. Hess that there was a possibility that she and Mr. Garland might resume living together, but she conceded there were "a few little problems we had yet, and besides, he was living in Reisterstown." In any case, no date had been set for the resumption of their previous living arrangements.

In reviewing the propriety of the trial judge's action in denying a directed verdict or judgment n.o.v., we are required to resolve all conflicts in the evidence in favor of the plaintiff, to assume the truth of all credible evidence presented in support of the plaintiff, and to accept as true all inferences naturally and legitimately arising from the evidence which tend to support the plaintiff's right to recover. B. P. Oil Corp. v. Mabe, 279 Md. 632, 370 A.2d 554 (1977); Fleming v. Prince George's County, 277 Md. 655, 358 A.2d 892 (1976). If there is competent evidence, however slight, tending to support the plaintiff's right to recover, the case should be submitted to the jury and the motion for judgment n.o.v. denied. Krol v. York Terrace Bldg., Inc., 35 Md.App. 321, 370 A.2d 589 (1977); Keene v. Arlan's Dept. Store of Baltimore, Inc., 35 Md.App. 250, 370 A.2d 124 (1977).

Appellant urges that the trial court erred in denying appellant's motions for a directed verdict and by allowing the jury's verdict that the claimants were wholly dependent on the deceased to stand.

Maryland Code (1957, 1979 Repl.Vol.) Art. 101, Section 36(8)(e) provides: "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. . . . " Appellant argues that this section requires the Commission to consider only the facts existent at the time of the injury and to determine from those facts whether the claimant was actually receiving the necessities of life from the decedent. Appellant further contends that at the time of Garland's injury and death, his children were not receiving the necessities of life from him, and that under these circumstances, the trial court should have granted its motion for directed verdict at the conclusion of the appellees' case or at the least should have granted its motion for judgment n.o.v. or for a new trial. The cases which follow this line of reasoning are represented by: Bituminous Construction Co. v. Lewis, 253 Md. 1, 251 A.2d 888 (1969); Superior Builders v. Brown, 208 Md. 539, 119 A.2d 376 (1956); and Brooks v. Bethlehem Steel Co., 199 Md. 29, 85 A.2d 471 (1952).

There is, however, another line of cases that suggests that dependency may be found when the facts existent at the time of injury reveal that the claimant had in the past substantially received the necessities of life from the workman, that a temporary lapse had occurred in the workman's support of the claimant, and that a reasonable probability existed that the support of the claimant would resume in the near future. Maryland House of Correction v. Jenkins, ...