Naughton v. Paul Jones & Co.

• Decision Date: 21 May 1948
• Docket Number: 171.
• Parties: NAUGHTON v. PAUL JONES & CO., Inc, et al.
• Court: Maryland Court of Appeals

59 A.2d 496

190 Md. 599

NAUGHTON v. PAUL JONES & CO., Inc, et al.

No. 171.

Court of Appeals of Maryland

May 21, 1948

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

Proceeding under the Workmen's Compensation Act by Catherine Naughton, claimant, opposed by the Paul Jones & Company Inc., employer, and the Aetna Casualty & Surety Company insurer, to recover compensation for the death of the claimant's son. From a judgment for the employer and the insurer, the claimant appeals, and the employer and insurer move to dismiss the appeal.

Appeal dismissed.

Joseph H. Colvin, of Baltimore, for appellant.

William D. Macmillan, of Baltimore, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

MARKELL Judge.

This case has been heard on motion to dismiss the appeal because appellant's brief and appendix do not properly present any question for review in accordance with the rules of this court. The case is an appeal by claimant from a judgment for employer and insurer, entered October 24, 1947, reversing an award, made by the State Industrial Accident Commission on June 17, 1947, of compensation to claimant at $10.000 per week for 300 weeks. Claimant was the mother of the employee who was killed by accident in the course of his employment on May 28, 1945. Two issues were submitted to the jury: Was claimant (1) partially or (2) wholly dependent on decedent for support at the time of his death. The jury answered both questions 'No'. The testimony was conflicting. The issues were clearly submitted to the jury in a charge to which no objections were made.

Until about 1941 decedent, who never married, supported claimant, who lived and still lives at Cambridge, Massachusetts. The testimony is in conflict as to whether after 1941 he supported her, either wholly or partly, until his death. About 1942 in Baltimore he began living with a married woman, who has two children. She lived with him, ostensibly as his wife under his name, until his death, and after his death collected group life insurance as his widow. Claimant testified that she was supported by decedent from 1941 until his death. Daughters of claimant testified that claimant received from him, or he sent her, money as late as 1944 or 1945. For employer and insurer his paramour testified that while they lived together he gave her his pay envelope or cashed his pay checks in her presence and turned over the money to her, she gave him a few dollars a week as he needed it and used the rest for rent and food and for herself and one or both of her children, and there was no money he could have sent to claimant. At times, when he was not working, she worked and supported the household.

Appellant's brief states the questions presented as (1) whether a witness's testimony contrary to her previous testimony flatly contradicted has any evidential value, (2) whether claimant is a dependent of decedent under the Workmen's Compensation Act, Code 1939, art. 101, § 1 et seq., and (3) whether the court should have granted claimant's motion for a directed verdict and her motion for judgment n. o. v. None of these questions is properly presented, if indeed they could be raised at all on this appeal. The first is a question for the jury, especially as to alleged conflict between testimony before the court and previous testimony before the commission. Florentine v. State, 184 Md. 335, 341, 342, 40 A.2d 820; Porter v. Quarry Co., 161 Md. 34, 37-39, 155 A. 428. To pronounce a witness's testimony 'too inconclusive, contradictory, and uncertain to be the basis of a legal conclusion' (Slacum v. Jolley, 153 Md. 343, 351, 138 A. 244, 248), we must at least have the testimony before us. Appellant's appendix contains no testimony at all. We may say that on the summation of the woman's testimony in appellant's brief we could not say, as a matter of law, that her testimony has no evidential value. Alleged contradictions relate to minor details. The jury had ample warrant either to discredit her as a witness or to believe material parts of her testimony mentioned above. By the same token, no question is properly presented as to refusal to direct a verdict or to enter judgment n. o. v. We cannot pass upon the legal sufficiency of evidence not properly before us. Furthermore, we think appellant's version of the woman's testimony is itself sufficient to sustain the verdict. The second question is the ultimate question for the jury, not (for the reasons already stated) for the court.

Appellant's appendix sets out, without any explanatory context, two letters from the woman to one of decedent's sisters dated December 3 and 8, 1945, i. e., six months after his death. On cross-examination of the woman these letters were offered by appellant and excluded by the court. One contains, in a postscript, the statement, 'Mike [decedent] was only working there a little bit more than a month. He had just come back to Baltimore and went to work.' Appellant argues that this statement would have discredited the woman's testimony that they had lived together continuously for three years before his death. The lower court...