Mario Anello & Sons, Inc. v. Dunn

• Decision Date: 26 May 1958
• Docket Number: No. 249,249
• Citation: 141 A.2d 731,217 Md. 177
• Court: Maryland Court of Appeals
• Parties: MARIO ANELLO & SONS, Inc., etc., et al. v. Clara M. DUNN, Widow, etc.

Page 177

217 Md. 177

141 A.2d 731

MARIO ANELLO & SONS, Inc., etc., et al. v. Clara M. DUNN, Widow, etc.

No. 249.

Court of Appeals of Maryland.

May 26, 1958.

J. Kemp Bartlett, III, Baltimore (Bartlett, Poe & Claggett, Baltimore, on the brief), for appellants.

John K. Barbour, Jr., Baltimore, for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

This is an appeal by the employer and insurer from a judgment entered in the Baltimore City Court reversing a decision of the State Industrial Accident Commission (Commission) that Clara M. Dunn, claimant and widow of Luther W. Dunn, deceased, was partially dependent upon the deceased at the time of the injury that resulted in his death within the meaning of Article 101, Section 36(8)(a)(d) Code (1957). The cause had originally been heard before the Commission and resulted in an award to Mrs. Dunn as being partially dependent upon the deceased. The claimant appealed to the Baltimore City Court where the case was submitted to the jury, over timely motions by the appellants for a directed verdict, to answer this issue: 'Was Clara M. Dunn wholly dependent upon Luther W. Dunn, deceased, at the time of his injury and death?' The jury's answer was, 'Yes.'

The facts are few, simple and undisputed. In 1949 the claimant was married to the deceased, and they lived as man and wife until his decease, with no children being born as a result of their marriage. On January 27, 1956, Mr. Dunn aged 56, an employee of Mario Anello & Sons, Inc., was operating a bulldozer in the course of his employment. The ground on which the bulldozer was working was frozen, and the bulldozer slipped and overturned upon him. He sustained multiple injuries, and died as a result thereof at South Baltimore General Hospital on January 30, 1956.

At the time of her husband's injury and prior thereto Mrs. Dunn was employed by the Western Coat Pad Company, a Baltimore concern, as a sewing-machine operator. In 1954 she earned a total of $1,604.51, in 1955 a total of $1,957.40 and during the month of January, 1956 she was employed and received an average take-home pay of approximately $30 per week. Her husband earned an average weekly wage of $90. Mrs. Dunn pooled the money that she earned with the money that her husband earned, and they used their money together to pay the bills. She planned to cease work in the spring of 1956. The appellants concede that Mrs. Dunn was partially dependent upon the deceased, but contend that the undisputed facts, and all inferences that may be drawn from them, conclusively show that she was not wholly dependent upon him in the sense that 'wholly dependent' is meant in the statute and in the manner that the words have been construed by this Court. The only question for our decision is the correctness, vel non, of the trial court's refusal to grant the appellants$ motions for a directed verdict.

Generally defined, a 'dependent' within the meaning of the Maryland Workmen's Compensation Act, is one who relies wholly or in part upon a workman for the reasonable necessities of life at the time of his accidental injury. A legal or moral obligation to support some one does not create dependency in the absence of actual support. Havre De Grace Fireworks Co. v. Howe, 206 Md. 158, 164, 110 A.2d 666. In Larkin v. Smith, 183 Md. 274, 280, 37 A.2d 340, 343, this Court defined what is meant by being 'wholly dependent' in substantially the following language:

"Total dependency exists where the dependent subsists entirely on the income of the deceased; but, in applying this rule courts will not deprive claimants of the rights of total dependents, when otherwise entitled thereto, on account of temporary gratuitous services rendered them by others, or on account of occasional financial assistance received from other sources, or on account of other minor considerations or benefits which do not substantially modify or change the general rule as above stated.' In other words the individual has no consequential source or means of maintenance other than the income of the deceased.'

This Court has had before it, on many occasions, the question of whether the evidence on the issue of total (or partial) dependency is sufficient to require that it be submitted to the jury. In each case where the evidence, or any inferences fairly deducible from it, was legally sufficient to support a rational conclusion of total dependency as opposed to the theory of a prayer for a directed verdict, this Court has held that the issue should be submitted to the jury, or the court sitting as a jury. Among those cases, see: Knibb v. Jackson, 210 Md. 292, 123 A.2d 338; Superior Builders, Inc., v. Brown, 208 Md. 539, 119 A.2d 376; Washington Suburban Sanitary Commission v. O'Donnell, 208 Md. 370, 118 A.2d 674; Bethlehem-Fairfield Shipyard v. Rosenthal, 185 Md. 416, 45 A.2d 79; Cf. Todd v. Easton Furniture Mfg. Co., 147 Md. 352, 128 A. 42; Krell v. Md. Drydock Co., 184 Md. 428, 41 A.2d 502; Harvey v. George J. Roche & Son, 148 Md. 363, 129 A. 359. On the other hand, we have consistently held the converse to be true, i. e., where the facts are undisputed, and permit no inferences consistent with the existence of a supposed or asserted right, the existence of such right is an unmixed question...