Dependency in a Workers compensation Death Case and a Baltimore Workers Compensation Claim.

218 Md. 581 (1959)

147 A.2d 756

MULLAN CONSTRUCTION COMPANY ET AL.
v.
DAY

Although they had been married in 1949, the claimant testified that she and her husband had never pooled their earnings. She used her money to buy things she needed around the house such as linens and dishcloths. Some of it was also used for church and carfare. And she bought small things for herself such as hose and gloves at a cost of less than ten dollars a week. She could not explain, however, what was done with the remainder of her weekly earnings, but stated that she spent the couple of dollars she had left over at the end of a week on herself. She did not have a savings account; nor did she own any bonds or other securities.

The claimant also testified that her husband made the payments on the house and paid for his lunches and carfare as well as for the food, fuel, telephone, clothes, insurance and medical bills for both. They were not paying installments on anything but the house, and they did not go to the moving pictures. Most of their free time was spent at church where her husband was a deacon.

In this State the Workmen’s Compensation Act does not define by express terms the meaning of “total” and “partial” dependency. Section 35 (8) (d), supra, provides:

“[Q]uestions of dependency, in whole, or in part, shall be determined by the Commission in accordance with the facts * * * existent at the time of the injury resulting in death * * *.”

Instead, as the statute provides, the Commission determines the status of the claimant in accordance with the facts in each case as of the date of the fatal injury. Superior Builders, Inc. v. Brown, 208 Md. 539, 119 A.2d 376 (1956).

Generally, a “dependent,” within the meaning of the statute, is one who relies in whole or in part upon the workman for the reasonable necessities of life at the time of the accidental injury. C.W. Wright v. Brannan, 217 Md. 397, 142 A.2d 574 (1958). Generally, one who subsists entirely upon the earnings of a deceased employee is a total dependent, but a legal or moral obligation to support a person does not create dependency in the absence of actual support. Mario Anello v. Dunn, 217 Md. 177, 141 A.2d 731 (1958). On the other hand, the courts do not demand that a claimant must show destitution in order to obtain an award as a total dependent. A claimant may receive temporary gratuitous services, occasional financial assistance or other minor benefits from sources other than the deceased workman but he must not have had a consequential source or means of maintenance in addition to what is received out of the earnings of the deceased. Larkin v. Smith, 183 Md. 274, 37 A.2d 340 (1944); Mario Anello v. Dunn, supra.

In the instant case, the claimant had take-home pay of $28.50 per week while the deceased averaged $59.60 gross each week. The claimant contends that the present case differs from the Anello case, supra, because she denied pooling her earnings with those of her husband. While it is true that the claimant steadfastly refrained from admitting that she and her husband had pooled their income, the use of the term “pooled” by the courts in compensation cases is but one of convenience to point out that the claimant used a part of his earnings to pay the common household expenses. Whether earnings are in fact pooled must depend upon the circumstances, and the inferences deducible therefrom, in each case. An anomalous situation would ensue if a claimant could acquire the status of a total dependent merely by disclaiming the use of his earnings in or about the home or its affairs. According to the testimony of the claimant in this case she spent less than ten dollars a week for incidentals plus a couple of dollars she had left over at the end of the week — a total of not more than twelve dollars — leaving approximately $16.50 a week unaccounted for, which she apparently kept in her pocketbook along with the $50 a week she received from her husband for the household bills. If she did not use the balance of her money to pay household bills, she must have used it to partially support herself. In any event, it is clear that no money was left over at the end of the week. How it was actually spent is not important under the circumstances in this case. On cross-examination she did admit that, if 589*589 a bill remained which “had to be paid” she “would take [her] own [money] and pay it.” And, while she reiterated that she would use her money only “if it just had to be,” she explained that fact by saying, “[w]e wasn’t separate, we was together.” The claimant should not be penalized for adhering to this commonplace concept of “togetherness,” but in a case such as this where the earnings of the wife were substantial, where she did not subsist solely out of the earnings of her husband, and where she either could not or would not account for more than half of her net earnings, she cannot establish the status of a total dependent by merely claiming she did not pool her earnings with those of her husband.

The Meyler case, however, did not hold that courts cannot consider conditions which existed prior to the injury. It did hold that rights which become fixed as of the date of the injury cannot thereafter be affected by any subsequent change of conditions. There is no reason why testimony as to facts and circumstances existing prior to the time of injury may not be considered in order to ascertain the status of the parties as of that date. 228 Md. 146 (1962)

178 A.2d 892

MARYLAND HOUSE OF CORRECTION ET AL.
v.
JENKINS

[No. 205, September Term, 1961.]

Court of Appeals of Maryland.

Decided March 20, 1962.

House of Correction on May 11, 1958.

Other evidence produced at the trial showed that prior to his incarceration, the prisoner had been employed by the Bethlehem Steel Company and was then contributing from $25 to $35 per week toward the support of his wife and children in 148*148 addition to making monthly mortgage payments on a home he owned and in which his dependents lived. In addition to this the prisoner had also claimed an illegitimate child born prior to his marriage as a dependent in his income tax return for the year 1957.

After the incarceration of her husband, the wife applied to the welfare department for financial assistance. This was granted and was continued until the death of her husband, when she qualified for social security benefits. There was also evidence that the wife had worked several days a week at $5 a day as a domestic, but that she stopped working after the receipt of the first welfare payment.

“* * * just as the existence of the marital status does not of itself prove dependency, so the lack of actual support by the husband does not of itself negative dependency. The failure to support is only one circumstance for consideration. The reasons for it, the length of its continuance, the mutual attitude and means of the parties, the probable resumption of duty, and other similar matters may have a distinct bearing on the subject. If dependency were determined 152*152 only by the fact of contribution to support, a wife and children might be dependent one week and cease to be the next according to the caprice of the husband and father.”

See also In re Tocci, 112 P.2d 515 (N.M. 1941), in which the Merrill case was cited with approval. And see La Salle County C. Coal Co. v. Industrial Comm., 190 N.E. 687 (Ill. 1934), involving the decedent’s support of his father, where the Court pointed out (at p. 688) that “[d]ependency, once recognized and firmly established by regular contributions for support over a reasonable course of time, is not abruptly terminated by the temporary failure of the contributor to meet his obligations of support as they become due, in the absence of proof that the relationship has definitely ceased to exist by the action of one or both of the parties.”

The function of this Court in a case such as this is to determine whether there was any evidence legally sufficient to be submitted to the jury. We think there was. There was evidence that the decedent had supported the claimants regularly prior to his incarceration. And there was also evidence that the decedent would probably resume supporting his wife and children after he had been released from prison.

Since there was evidence from which the jury could find that there was reasonable probability of the resumption of support in about a year or possibly less as of the date of the injury and death, we hold that the question of dependency was not a matter of law but one of fact to be decided by the jury. Havre de Grace Fireworks Co. v. Howe, supra 206 Md. 158 (1955)

110 A.2d 666

HAVRE DE GRACE FIREWORKS COMPANY ET AL.
v.
HOWE ET AL.

[No. 63, October Term, 1954.]

Court of Appeals of Maryland.

Decided January 17, 1955.

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. Meyler v. Mayor and City Council of Baltimore, 179 Md. 211, 215, 17 A.2d 762. A legal or moral obligation to support someone, in the absence of actual support, does not create dependency within the meaning of our Act. As the Court, speaking through Judge Henderson, said in Kendall v. Housing Authority of Baltimore City, 196 Md. 370, 375, 376, 76 A.2d 767, “When the legislature eliminated the enumerated instances of relationship by blood or marriage to which recovery had been limited, we think it left as the only requirement a finding of fact that the claimant was subsisting, and would probably continue to subsist, in whole or in part upon the earnings of the workman at the time of the injury.”

There was evidence that the father occasionally gave the children some clothing and spending money. But with these trivial exceptions, he did not contribute anything toward their support, except when he brought them to his home in Havre de Grace for Christmas or for a few days in summer. It was undisputed that the children were not wholly dependent upon their father during the nine years they were living in the orphanage. Even assuming that the father had planned to build a house, and that there was a possibility that he could have carried out the plan to bring the children back to his home and support them if he had not been killed, we cannot disregard the explicit mandate of the statute that the question of dependency shall be determined from the facts existing at the time of the employee’s injury resulting in his death. Code 1951, art. 101, sec. 35(8) (d). As we said in Meyler v. Mayor and City Council of Baltimore, 179 Md. 211, 215, 17 A.2d 762, when the death of a workman ensues from an accidental injury, the right of his dependent to workmen’s compensation becomes fixed as of the date of the injury irrespective of any subsequent change of condition.

The record is devoid of any evidence legally sufficient to show that the children were totally dependent upon their father.