Fenwick Motor Co. v. Fenwick

¹³⁶ Digges, J., delivered the opinion of the Court. We have been called upon to consider the propriety of granting summary judgment on a question of dependency in a workmen’s compensation case, where the facts enumerated in the supporting affidavits are conceded for the purposes of the motion but where the inferences that can be reasonably drawn from them are hotly contested. Determining that the genuine dispute of fact contemplated by Maryland Rule 610 d includes disputes both over facts and factual inferences we must reverse and remand the case for further hearing. The appellee, Louise B. Fenwick, is a mentally retarded child who was sixteen when her father was fatally injured in an accident arising out of the course of his employment at the Fenwick Motor Company in Leonard-town, Maryland.

The accident occurred on September 27, 1968 at a time when Mr. Fenwick’s average weekly salary and commissions amounted to $114.65. The appellee’s mother, Anabel B. Fenwick, was employed at the Naval Air Station, Patuxent River, Maryland, and drew a weekly salary of $115.00. The widow and the deceased jointly received $75.00 a month for the rental of an apartment in their home. On the basis of these uncontradicted facts and the inferences drawn from them the Workmen’s Compensation Commission found that Mrs. Fen-wick was not dependent on her husband for support, and on appeal to the circuit court (removed from St. Mary’s to Calvert County) the trial judge (Bowen, J.) upheld this phase of the Commission’s finding.

It is not before us as no further appeal was taken from this ruling. In regard to the support of the daughter the mother testified as follows: “(The Commission) As to the support of this child, did you and your husband jointly support her? (Witness) Yes. (The Commission) Did you pool your money, is that what you did with your money?

Did you ¹³⁷ pool it, put it in a bank together, did you keep it separate or how did you work your family finances? (Witness) Well, I guess we pooled it. We didn’t bank very much, we spent it all.” Later in the hearing she further testified: “ (The Commission) I’m talking about the money that was earned, did you just pool your money and he handled the money? (Witness) No indeed, I handled my own.

(The Commission) You handled your own money? (Witness) I spent my own and some of his. (The Commission) And some of his. How much of his did you spend ?

(Witness) Whatever I needed he always gave me. (The Commission) And you never gave him any of yours ? (Witness) No, he never asked for it. (The Commission) Did you have a joint checking account ?

(Witness) We had a joint checking account, yes. (The Commission) Did you have a joint savings account ? (Witness) No, we had no savings account except one little one I had at the credit union down where I work. (The Commission) Well, did you contribute to the support of your daughter ?

(Witness) I bought her clothes. I bought her everything extra that she wanted like a record player and records for it. (The Commission) Well, is this essentially the only thing that you purchased for her out of your money, odds and ends that you’re speaking of, clothes, record player, things of that sort ? (Witness) Yes, I guess so. . . .” ¹³⁸ From this the Commission determined that the daughter was only partially dependent upon her father’s support and awarded her $50.00 weekly benefits, the total payments not to exceed $9,000.00.

On appeal to the circuit court the appellants, employer and insurer, sought to affirm the Commission’s determination through a motion for summary judgment. In their supporting affidavit they only incorporated the mother’s testimony before the Commission. In the appellee’s affidavit in opposition to this motion it was maintained in regard to the daughter’s support “That the said deceased purchased and paid for all her necessities of life and gave her spending money and on some rare occasions, her mother purchased some clothes and playthings.” In addition, the claimants countered with a cross motion for summary judgment, urging a finding of total dependency. Although Judge Bowen noted the sketchiness of the evidence, he determined there was no dispute over any material fact and concluded from the incorporated testimony and supporting affidavits that the child was totally dependent on her father.

He increased the award accordingly. We find this to be error. In a summary judgment proceeding even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact. McDonald v. Burgess, 254 Md. 452, 454 ,