Knibb v. Jackson

• Decision Date: 14 June 1956
• Docket Number: No. 187,187
• Parties: William W. KNIBB et al., t/a Twin Food Stores, Employer, and United States Fidelity and Guaranty Company, Insurer, v. Emma JACKSON and Joseph Jackson, Mother and Brother, Respectively, of James E. Jackson, Deceased, Claimants.
• Court: Maryland Court of Appeals

Page 292

210 Md. 292

123 A.2d 338

William W. KNIBB et al., t/a Twin Food Stores, Employer, and United States Fidelity and Guaranty Company, Insurer, v. Emma JACKSON and Joseph Jackson, Mother and Brother, Respectively, of James E. Jackson, Deceased, Claimants.

No. 187.

Court of Appeals of Maryland.

June 14, 1956.

C. Damer McKenrick, Baltimore, and W. Albert Menchine, Towson (Henry W. Schultheis, Baltimore, on the brief), for appellants.

W. Lee Harrison, Towson (Richard C. Murray, Towson, on the brief), for appellees.

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

HAMMOND, Judge.

The employer and the insurer appeal from a judgment entered on a jury's affirmance of the finding of the State Industrial Accident Commission that a minor brother was wholly dependent upon his deceased older brother. The appellants urge that the trial court erred in refusing their motion for an instruction, as a matter of law, that dependency was only partial and not total, and that the court's charge is erroneous as given, and inadequate.

The testimony shows that Mrs. Emma Jackson and her sons, Joseph, thirteen, and James, seventeen and a half, at the time of James' injury, lived together on Upper Park Heights Avenue in Baltimore County, where the family had lived for fifteen years. The husband lived elsewhere and for some years had contributed nothing to his wife and children. Mrs, Jackson had supported the family until James went to work just about the time he became sixteen. Mrs. Jackson was employed at a weekly wage of $37 and James received $35. Mrs. Jackson's take home pay varied from $32 most weeks to $28 or $29 the one week in the month she paid for Blue Cross protection. From his earnings of $35 a week James gave his mother a total of $22-$7 for his board, $5 for herself, and $10 for Joseph, the younger brother. The parties differ sharply as to whether or not the net $32 a week Mrs. Jackson earned and the $22 a week that James contributed to her, were pooled in a single fund and used for the benefit of all three of the family, or whether the $10 a week that James gave his mother was used entirely for Joseph's benefit, and constituted his only consequential source of support. There is testimony which would permit a finding either way. Mrs. Jackson testified that the money that was given her by James for Joseph was for Joseph's support, saying that from it: 'I bought his clothes, I sent him to school and I seen that he had proper food.' She said also that the $10 a week was not used for any other purpose, only for Joseph and that 'I clothed and fed him and bought him shoes with the $10.00.' She testified that no one other than James contributed any support for Joseph.

On the other hand, there was testimony which showed that Mrs. Jackson was buying the house in which the family lived, that she paid the interest on the mortgage, and the taxes, and furnished the Blue Cross medical protection, as well as the weekly payments on the automobile. She claimed Joseph as a dependent on her income tax return. She testified that the family food bill was some $20 a week. James gave $7 a week as his share for board. She also said that from the $10 she gave Joseph fifty cents a day for his lunch at school. The appellants argue that it is inescapable from her testimony that the cost of Joseph's share of the food was approximately $7 a week and that the fifty cents a day school lunch money added up to another $2.50 a week, which, together with occasional spending money which Mrs. Jackson testified she gave Joseph from the $10, used up the weekly donation from James, and that all his other needs must have been, and were, furnished by his mother. They point, too, to Mrs. Jackson's response to the question whether the $50 or $54 a week she had available from her own earnings and James' contribution were not all utilized 'in the maintenance and support of yourself and James and Joseph', which was: 'Well, we all three lived together; we all ate together.'

We think the case is one which was properly submitted to the jury to determine whether the Industrial Accident Commission was right in deciding there was total dependency. In Brooks v. Bethlehem Steel Co., 199 Md. 29, 85 A.2d 471, this Court found as a matter of law that two children, one of whom lived with her grandmother and the other with her mother, were not totally dependent upon their father, who regularly had sent them each $5 a week, and had given them spending money and clothing from time to time. The Court said that on the undisputed facts they were dependent upon the grandmother and the mother, respectively, and never had been deprived of the rights of total dependents. In the case before us, if the parts of the testimony and the inferences from it, stressed by the appellants, were established as the facts, the case would be difficult, if not impossible, to distinguish from the Brooks case. In contrast, in Superior Builders, Inc., v. Brown, 208 Md. 539, 119 A.2d 376, where the mother made $25 a week which she testified was all spent for lodging and food for her own bare maintenance, and her brother sent $25 a week for the support of the three children, and there was testimony that the children would have been sent to an orphanage if this contribution had not been made, it was held that it was properly a jury question whether or not the children were dependent on the uncle. This Court has refused to put a narrow construction on the meaning of the statute as to total dependency. At a time when the law raised a presumption that a wife was dependent on her husband, we refused to disturb a finding of total dependency where the wife earned $30 a week while the husband earned $47.45--Bethlehem-Fairfield Shipyard v. Rosenthal, 185 Md. 416, 45 A.2d 79. Again, we affirmed a finding that a son was totally dependent on his father, although the mother had been the sole support of the family when for a year the father was, by his own labor, building a house for the family, and although at the time of his death she was still working and making some contribution to the family expenses--Washington Suburban Sanitary Commission v. O'Donnell, 208 Md. 370, 118 A.2d 674. In the case before us the question is a close one. The majority of the Court feels that dependency should not be decided as a matter of law and that the case properly went to the jury on the issue of total dependency.

We think, however, that the court's instructions, to which the appellants duly and specifically excepted, were likely to have misled the jury. The court charged the jury as to the prima facie correctness of the finding of the State Industrial Accident Commission and the burden of persuasion borne by...