Community Baking Co. v. Reissig

Digges, J., delivered the opinion of the Court. . This is a workmen’s compensation case. Michael A. Keissig, while in the employ of the Community Baking Company, sustained an injury on September 22nd, 1927, as a result of which injury he died on November 17th, 1927. After his death a claim for compensation was made on behalf of his widow, the application being made on the form then prescribed by the State Industrial Accident Commission in such cases.

The insurer requested a hearing; and after the taking of testimony the commission awarded full compensation to the widow, Mary A. Keissig, at the rate of $18 per week, payable weekly, for the period of 277 7/9 weeks. Compensation was paid to her from the date of the award until her death, which occurred December 20th, 1930. Thereafter, on December 9th, 1931, the appellee filed with the commission a petition setting forth: “That Michael A. Keissig, deceased, ¹⁹ died on November 17, 1927, while working for the Community Baking Company. That said deceased left surviving him his wife, Mary A. Reissig, and a grandchild, Paul Joseph Reissig, both of whom were solely dependent upon said deceased.

That an award was made in this case to the said Mary A. Reissig, who died on December 20, 1930. That after the death of the claimant, his widow supported your petitioner who is now eight years of age, and who was dependent after the death of his grandfather, Michael A. Reissig, deceased, on his grandmother, Mary A. Reissig, deceased. That after the death of the said Mary A. Reissig, the above-named employer and insurer refused and still refuse to pay compensation to your petitioner. Your petitioner now prays that your Commission may reopen this ease and grant him a hearing to decide whether he is entitled to receive compensation.” Thereafter a hearing was had before the commission on said petition upon the three following issues: “1.

(By claimant): Petition to reopen to determine whether or not Paul Joseph Reissig, grandchild, is entitled to compensation. “2. (By insurer) : Was the said Paul Joseph Reissig, at the time of the death of Michael A. Reissig, dependent on him in whole or in part within the contemplation of the Workmen’s Compensation Law of Maryland ? “3. Is the claim of the said Paul Joseph Reissig barred by limitations ?” Before the hearing the employer and insurer moved to dismiss the petition. On March 2nd, 1932, the commission “ordered that the petition filed in these proceedings to reopen the case, be and the same is hereby denied.” From this order an appeal was taken to the Circuit Court for Allegany County.

The case was heard before the court sitting as a jury upon two issues: First, “Is the claim of Paul Joseph Ressig barred by limitations?” Second, “Was the said Paul Joseph Reissig, at the time of the death of Michael A. Reissig, dependent on him, the said Michael A. Reissig, in whole or in part within the contemplation of the Workmen’s Com ²⁰ pensation Law of Maryland ?” The defendants offered three prayers for a directed verdict, which were refused; and the court, sitting as a jury, answered the issues in accordance with the contentions of the appellee, namely, that the claim of the appellee was not barred by limitations, and that the appellee was at the time of the death of Michael A. Reissig dependent on him in whole or in part within the contemplation of the Workmen’s Compensation Law of Maryland (Code, art. 101, sec. 1 et seq.); and entered a judgment reversing the finding and order of the commission. From that judgment the appeal here was taken. A motion was filed by the appellants h> dismiss the appeal from the commission to the circuit court, on the ground that the appeal had not been filed in that court within thirty days from the decision of the commission. This motion was overruled.

The appellants contend that such action was reversible error. The facts are that within thirty days of the decision of the commission notice was served personally upon a member of the commission of an a,ppeal to the Circuit Court for Allegany County, but no suit was docketed in that court until after the expiration of. thirty days from the commission’s decision. These facts in this regard are identical with those presented in Monumental Printing Co. v. Edell, 163 Md. 551 , 164 A. 171 , and for the reasons therein stated, we find there was no error in overruling the motion to dismiss on that ground in this case. It is next contended by the appellants that the claim of the appellee was barred by limitations.

The record establishes that the appellee is the grandson of Michael A. Reissig and Mary A. Reissig, his wife, being an illegitimate son of their daughter; that he was an infant four years old at the time of his grandfather’s death; that from the time of his birth until his grandfather’s death he lived with these grandparents, and was supported and taken care of by Michael A. Reissig; that after the grandfather’s death he continued to live with the grandmother, Mary A. Reissig, she being his sole support up to the time of her death; that no claim or application for compensation was made by or on behalf of the ²¹ appellee for more than four years after the death of the injured deceased, hut that it was made within one year from the death of the grandmother, Mary A. Reissig, who was being paid compensation as the widow and dependent of Michael A. Reissig. Section 39 of article 101 of the Code, after prescribing the time within which an injured employee must make application for compensation, then provides: “When death results from injury the parties entitled to compensation under this Article, or some one in their behalf, shall make application for same to the Commission within one year from the date of death, which