Bethlehem-Fairfield Shipyard, Inc. v. Rosenthal

⁴²⁸ Markell, J., filed the following dissenting opinion: In some jurisdictions, in some circumstances (e. g., when husband and wife live together) the presumption of total dependency is a conclusive presumption, i. e., not a presumption at all, but a rule of substantive law, that the widow is entitled to compensation regardless of dependency. In Maryland the presumption is a prima facie presumption, i. <?., a true presumption, which affects pnly the burden ef proof, whether (a) in the primary sense of the risk of non-persuasion or (b) in the secondary sense of the burden of going forward. In the instant case presumptions (of total dependency and of correctness of the Commission’s decision) and burden of proof play no real part. They require us to assume the truth of the claimant’s testimony and of any permissible inferences favorable to her.

Regardless of presumptions, we could do no less. All the evidence comes from the claimant herself. Not only is her testimony uncontradicted, but the facts are essentially undisputed. Whether on the undisputed facts she was totally dependent is a pure question of law.

Moore v. Clarke, 171 Md. 39, 46 , 187 A. 887 , 107 A. L. R. 924; Albright v. Pennsylvania Railroad Company, 183 Md. 421 , 37 A. 2d 870 ; Heaps et al. v. Cobb, 185 Md. 372 , 45 A. 2d 73 . Undisputed facts are that: The husband came from New Jersey to Baltimore on July 1, 1942; the wife followed on August 8, 1942. In New Jersey “he made $30 sometimes $40 sometimes less a week.” Out of that she would save $15—or more. From the time the