Larkin v. Smith

• Decision Date: 04 May 1944
• Docket Number: 15.
• Parties: LARKIN et al. v. SMITH.
• Court: Maryland Court of Appeals

37 A.2d 340

183 Md. 274

LARKIN et al. v. SMITH.

No. 15.

Court of Appeals of Maryland

May 4, 1944

Appeal from Court of Common Pleas of Baltimore City; Samuel K Dennis, Chief Judge.

Proceeding under the Workmen's Compensation Act by Isabelle D Smith, claimant, for the death of her son, George E. Smith Jr., deceased, opposed by William J. Larkin, trading as Carroll Wrecking Company, employer, and Eureka Casualty Company, insurer. From a judgment in favor of claimant on appeal from a decision of the State Industrial Accident Commission in claimant's favor, the employer and insurer appeal.

Judgment affirmed.

Foster H. Fanseen, of Baltimore (B. G. Wilkinson, of Rockville, on the brief), for appellants.

Paul Berman and Eugene A. Alexander, III, both of Baltimore (C. E. Hogg, of Ellicott City, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, and BAILEY, JJ.

MARBURY Chief Judge.

An employer and insurer appeal from a judgment in favor of a claimant entered in the Court of Common Pleas of Baltimore City, on appeal from the State Industrial Accident Commission. The Commission had decided in favor of the claimant, and the jury answered the several issues in her favor. Five exceptions were taken during the course of the trial, all of which have been abandoned except the last two. Number four is to the refusal by the trial court of employer and insurer's prayer No. 1. Number five is to the instructions give by the trial court to the jury.

The record shows that the appellee is the mother of George E. Smith, Jr., who died as a result of injuries sustained while in the performance of duties arising out of and within the scope of his employment. The claimant had five other children, all minors, and a husband who was not living with her. The accident, from which her son died, occurred on December 15, 1942. At that time the appellee claimed she was not employed. One of her younger children, who at times had earned $6 a week outside of school hours, was working in December, but what money he got in that month he spent on himself. After the brother's death, this younger boy started giving his mother most of his earnings, according to her testimony. He had given her some in October. The appellee had previously worked in a restaurant, but stated she had stopped prior to the fatal accident on account of her health. She had seven hens, and would sometimes save eggs and sell them. She lived in a home which belonged to her and her uncle, and she kept the uncle in the home. When she was working at the restaurant she was earning $11 a week. According to her testimony, after she stopped working, she frequently went over to the restaurant to see her former employer, and occasionly the latter would give her something to eat. Sometimes she would wash dishes, and her former employer would give her a dress or a pair of shoes, but she never received any money or food to take home after she stopped working. The average earnings of the son who died were $23 a week, and he contributed about $18 a week to her support and to the support of the children.

The appellants did not concede all of these facts, but offered witnesses to the fact that appellee was seen at the restaurant in December, and one of these witnesses said he cashed a check for her in the latter part of November. Another witness testified that appellee had been seen going back and forth to the restaurant, but the witness did not know what she was doing, and did not know whether she was getting paid. That witness went to the restaurant about once a week, and sometimes the appellee would get her a pint of ice cream there. The appellants also produced the employer of the minor boy, who was earning $6 a week. She testified that the boy started working for her in October, quit in November, and came back in December. He came in the evening, and was paid $6 a week, but there is no evidence that the appellee got any of the money in December.

On these facts the trial court instructed the jury that the State Industrial Accident Commission had decided that the appellee was wholly dependent upon the decedent at the time of his death, that decision was prima facie correct, and the burden of proof was on the appellants to show by a fair preponderance of affirmative evidence that the appellee was not wholly dependent. The appellants asked the court to instruct the jury that if they should believe from the evidence 'that the claimant received any support from any source other than from George E. Smith, Jr. at the time of his injury', then they should answer the second issue submitted by the appellants, 'yes'. This second issue was whether the appellee was partly dependent on the deceased. The court refused this prayer, and this refusal, as above stated, is the subject of the fourth exception.

The third issue of the appellants, as well as the first issue of the appellee, asked the jury to find whether the appellee was wholly dependent upon the deceased at the time of the injury. After they had retired, they returned and the foreman, in writing, requested the court to answer a rather confused question, the gist of which, however, was embodied in the last sentence, which read, 'We are seeking the interpretation of the word, wholly'. The trial court in answer to this question did not define wholly, but told the jury what the appellants' construction of the word was, and instructed the jury that he did not think the legislature intended any such construction. The court's instruction on this point is as follows:

'I don't know that I can help you any. Mr. Fanseen says that the word 'wholly' is so tightly drawn and is so narrow in its interpretation, that if someone had given this mother, who lost her son, I believe, in December, 1942, so much as a loaf of bread, in consideration of wiping a plate, that that would make a difference of two thousand dollars in the compensation to which she would otherwise be entitled by reason of the death of her son under the circumstances which appear here.

'Mr. Fanseen further makes the point, I believe, that the money derived from the sale of an accumulation of eggs from some six or seven hens, perhaps a dozen eggs, distributed between the mother and four minor children, would constitute support other than the support from her deceased son.

'All I can say is this, and I say it in a very serious mood, and over Mr. Fanseen's objection, giving him an exception: I don't think that the legislature intended any such illiberal construction of the word 'wholly'.' The court then went on to discuss the evidence, apparently stating correctly what had been testified to, and then he said: 'Counsel has suggested I should tell your this (I thought I had already told you) that I haven't a thing to do with determining the facts; it isn't my job to tell you for which side you ought to decide the case; and it is for you to determine where the truth lies, and not for me. And in my discussion of the facts; if I discussed them, it isn't my intention to sway you this way or sway you that way, as to the ascertainment of the truth. You must always remember, though, that the findings of the Commission that this woman was a total dependent is prima facie correct. That means that is assumed to be the truth, and we are all bound by that until or unless Mr. Fanseen and his clients produce some testimony sufficient to your minds to overcome that presumption. In other words, he carries the load. Now, whether it is a heavy load or light load is for you to determine; and the only way he can relieve himself of that load is to produce in your minds a little bit more truth than the other side. I don't mean more witnesses, but more truth.' Appellants object to this charge, both on the ground that the court's interpretation of the meaning of wholly dependent was wrong, and on the further ground that in discussing the evidence, the court unduly accented that part which was favorable to the appellee and disregarded evidence, which was favorable to the appellants.

The first objection to the charge is the same as that made to the refusal to grant the appellants' first prayer, and will be considered in connection with that. The point there is the meaning of the words 'wholly dependent' in the Workmen's Compensation Act, Code Article 101, Section 48. The statute provides that certain people shall be presumed to be wholly dependent and then 'In all other cases, the question 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 * * *.' The words 'wholly dependent' are generally not precisely defined, but in numerous cases in other jurisdictions, the facts have been discussed, and the courts have said whether or not proof of other income of various kinds prevents a claimant from being wholly dependent. Counsel have referred us to a number of these cases which we have examined. It is not necessary to discuss the facts in all of these cases, and it would...