State Industrial Acc. Commission v. Downton

• Decision Date: 10 December 1919
• Docket Number: 55.
• Parties: STATE INDUSTRIAL ACCIDENT COMMISSION v. DOWNTON et al.
• Court: Maryland Court of Appeals

109 A. 63

135 Md. 412

STATE INDUSTRIAL ACCIDENT COMMISSION v. DOWNTON et al.

No. 55.

Court of Appeals of Maryland

December 10, 1919

Appeal from Circuit Court, Allegany County; Robert R. Henderson Judge.

Proceedings under the Workmen's Compensation Act for award for the death of Thornton Downton, employé, by the guardian of his minor children, William Oliver Downton and Marian Grace Downton, opposed by the Cumberland Big Vein Coal Company employer, in which the Industrial Accident Commission awarded compensation for partial dependency. An appeal was taken to the circuit court, which made an award for total dependency and the Commission appeals. Reversed, and remanded for new trial.

Argued before BOYD, C.J., and BURKE, THOMAS, URNER, STOCKBRIDGE, and ADKINS, JJ.

Wm. Pinkney Whyte, Jr., Asst. Atty. Gen. (Albert C. Ritchie, Atty. Gen., on the brief), for appellant.

Walter C. Capper, of Cumberland (J. Philip Roman, of Cumberland, on the brief), for appellees.

STOCKBRIDGE J.

Thornton Downton was a coal miner employed by the Cumberland Big Vein Coal Company, which company had insured its employés under the Workmen's Compensation Act (Laws 1914, c. 800) in the industrial accident fund.

On the 20th of December, 1918, Thornton Downton was injured between the tipple of the mouth of the mine, and died from his injuries on the same day. He had been married a number of years before the accident, but his wife had secured a divorce from him, and was not living with him when the accident occurred. As the result of the marriage there were two children, William Oliver Downton, ten years of age, and Marian Grace Downton, seven years of age, at the time of the happening of the accident.

By the decree of divorce there was no allowance of permanent alimony to Mrs. Downton, and the custody of the two children was given to her. They had made their home with their mother from the time of the separation of their parents, and except for a brief space of time Mr. Downton made no provision whatever for their support. He would frequently see them at the barber shop of his brother-in-law, or meet them on the street, and at such times was in the habit of giving them a half dollar, quarter of a dollar, or dime, and on rare occasions gave them clothing, such as shoes and other articles. The total value of these gifts is not fixed by any of the witnesses; the nearest approximation to it is as being in the neighborhood of $10, or a little in excess of that amount. This sum so irregularly given was entirely inadequate for the support of the two children, of whom he is said to have been very fond.

The case was investigated by the State Industrial Accident Commission, and that commission made an award in favor of the children, as for a case of partial dependency. From the award of the commission an appeal was taken to the circuit court for Allegany county, where the action of the commission was virtually reversed, by reason of the instructions granted, and the award was that provided by the act for a case of total dependency.

Two prayers were presented to the court, embodying the views respectively of the guardian of the minor children and of the state Industrial Accident Commission. Those prayers are as follows:

"Appellants pray the court to instruct the jury that, if they find from the evidence in this case that the infant children of Thornton Downton, deceased, were under the age of 16 years at the time of the death, that they had no property of their own, and that no other person except the said Thornton Downton was under any legal or actual liability to support them, and that they were not living apart from their father of their own choice, that then they were wholly dependent on the said Thornton Downton for support, and their answer to the issue of fact submitted to them should be 'Yes.'

The defendant prays the court to instruct the jury that a dependent is one who looks to another for support and

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