Meyler v. Mayor and City Council of Baltimore

• Citation: 17 A.2d 762,179 Md. 211
• Decision Date: 29 January 1941
• Docket Number: 68.
• Parties: MEYLER v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Court of Appeals of Maryland

17 A.2d 762

179 Md. 211

MEYLER v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 68.

Court of Appeals of Maryland

January 29, 1941

Appeal from Superior Court of Baltimore City; Emory H. Niles, Judge.

Proceeding under the Workmen's Compensation Act by Marie Meyler stepdaughter of Michael Gibbons, deceased employee, claimant opposed by the Mayor and City Council of Baltimore, a municipal corporation, employer and self-insurer. From a judgment of the Superior Court of Baltimore City affirming an order of the State Industrial Accident Commission holding that claimant was not a dependent within the meaning of the state Workmen's Compensation Act, claimant appeals.

Reversed and new trial awarded.

Paul Berman, of Baltimore (Edwin J. Wolf, Harry B. Wolf, Jr., and Theodore B. Berman, all of Baltimore, on the brief), for appellant.

Hector J. Ciotti, Asst. City Sol. of Baltimore (Charles C. G. Evans, City Sol., of Baltimore, on the brief) for appellee.

Argued before BOND, C.J., and SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

DELAPLAINE Judge.

The question in this case is whether Marie Meyler, appellant, was a dependent of Michael Gibbons, her stepfather, at the time he sustained a fatal injury in the course of his employment by the Mayor and City Council of Baltimore, appellee. The Superior Court of Baltimore City, affirming an order of the State Industrial Accident Commission, held that she was not a dependent within the meaning of the Workmen's Compensation Act of Maryland.

Gibbons was injured on May 1, 1939, while working for the Street Cleaning Department of Baltimore City, and died as a result of the injury on June 2, 1939. At the hearing of the claim of the widow, Gertrude Gibbons, before the Commission on September 7, 1939, the appellant, then 40 years of age, testified that her father died when she was 6 years old, and that she started to work in a paper box factory at the age of 14. After her mother married Gibbons, the three lived together. In April, 1937, she gave up her job at the factory, in accordance with the wish of her stepfather, to take care of her invalid mother and the home. Miss Meyler testified: 'He asked me to stay home, and he would see that I was taken care of.' He did not pay her a salary, but he gave $18 a week for the expenses of the household. She said that from this allowance she bought her clothes and had whatever spending money she needed. She declared that she was wholly dependent upon her stepfather for support at the time of his accident. On September 22, 1939, the Commission awarded compensation to the widow, payable at the rate of $13.20 per week, not to exceed $5,000, and also allowed $125 for funeral expenses. Code, art. 101, §§ 48, 49. The award was affirmed after a trial before a jury in the Baltimore City Court.

On March 12, 1940, Mrs. Gibbons died; and on May 22, 1940, her daughter petitioned the Commission to reopen the case to determine whether she was a dependent of her deceased stepfather and thus entitled to receive the balance of the compensation due under the award. She explained that she did not join in the original claim after his death because she relied upon her mother for support at that time. However, she complied with the requirement of the statute that whenever death results from an injury the parties entitled to compensation, or someone in their behalf, shall make application for the same within one year from the date of death. Code, art. 101, § 51. There is nothing in the statute which requires that all of the dependents of a deceased employee shall be ascertained and determined at the time any dependent's application is considered. If a dependent who has been awarded compensation dies before the full amount has been paid, and a petition is duly filed by another claimant for the unpaid balance, it then becomes the duty of the State Industrial Accident Commission to determine for the first time whether the new claimant was a dependent of the deceased employee, and in deciding that question the Commission must look at the conditions as they existed at the time of the injury. Community Baking Co. v. Reissig, 164 Md. 17, 23, 164 A. 176, 179.

The Commission denied the daughter's claim, and ordered the payments of compensation to cease as of March 12, 1940.

On her appeal from the order of the Commission, Miss Meyler presented two issues: (1) Was she 'wholly dependent' upon her stepfather at the time of the accident? and (2) If not, was she 'partially dependent' upon him? The trial judge, after the testimony had been read, directed the jury to answer 'No' to both issues. He said that, even assuming all the testimony to be true, she could not be a dependent, either wholly or partially, within the meaning of the statute. She is now appealing from the judgment of the Superior Court affirming the order of the Commission.

While the Workmen's Compensation Act does not define the term 'dependent,' it declares that the following persons shall be presumed to be wholly dependent for support upon a deceased employee: (1) a wife, (2) an invalid husband, and (3) a child or children under the age of 16 years, or over said age if incapacitated from earning, living with or dependent upon the parent at the time of the injury or death. The Act then provides: '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, but no person shall be considered as dependent unless such person be a father, mother, grandfather, grandmother, stepchild, or grandchild, or brother or sister of the deceased employee, including those otherwise specified in this Section.' Code, art. 101, § 48.

Thus, according to the express direction of the Legislature, the question whether a stepchild of an employee should be adjudged a dependent must be determined from the circumstances of the case as they existed at the time of the injury. A 'dependent' under the Workmen's Compensation Law may be generally defined as one who is relying wholly or in part upon a workman for the reasonable necessities of life at the time of the workman's accident. Grant v. Kotwall, 133 Md. 573, 577, 105 A. 758, 760; 12 Words and Phrases, Permanent Edition, 88-124. In order to establish dependency, an applicant for compensation must show that there was reasonable ground to expect continuing support from the workman; tht is to say, there must be not only an obligation to support, but also a reasonable probability that the obligation will be fulfilled. State Industrial Accident Commission v. Downton, 135 Md. 412, 416, 109 A. 63, 65; 28 R.C.L., Workmen's Compensation Acts, sec. 65. But when the death of an employee ensues from an injury, the right of a dependent to compensation becomes fixed as of the date of the injury, irrespective of any subsequent change of conditions. Miller v. Riverside Storage & Cartage Co., 189 Mich. 360, 155 N.W. 462.

It was contended by counsel for the City that Miss Mayler was merely a maid and nurse for her mother under a contract. We are unable to accept that contention. We have already held in this Court that where an employee turned over his earnings to his sister to buy the supplies for the home and the sister did the housework and had no other employment or means of support, the evidence was legally sufficient to show that she was a dependent under the statute. Mech v. Storrs, 169 Md. 150, 179 A. 525. Likewise, in Indiana, where a workman turned over his earnings to his sister to pay the household expenses, and told her not to worry over her situation as he would furnish her a home as long as possible, the Court held that she was not serving under a contract of employment, and could not be deprived of compensation merely because she might have been able to support herself as a stenographer, since the testimony showed that she was in fact dependent upon him for support. The Court stated in its opinion: 'It is apparent that the deceased supported his sister * * * in recognition of a...