Keystone Lime & Stone Co. v. Kabat

Pattison, J., delivered the opinion of the Court. On the 8th day of June, 1916, an employee of the Keystone Lime and Stone Company was run over and injured by a loaded car, owned and used by the company in the operation of its quarry near Port Deposit, Maryland. Immediately after the accident he was sent to a hospital at Havre de Cra.ce, Maryland, where he, on the same day, died from the injuries he had sustained. On the 10th day of June, 1916, the company filed its report. with the Accident Industrial Commission, made by its superintendent, L, E, Tavenner, in which the name of the person, who had sustained the injuries resulting in death, was given as “F. Smith,” and on the 13th day of the same month, Dr. Richard H. Smith, the attending physician, filed his report with the commission, in which the name of the deceased party was given as Frank Smajda, and his address as 601 Bond Street, Baltimore, Md. On the 29th day of June, Miehelina Smajda, alleged widow of Frank Smajda, gave notice to the1 Keystone Lime and Stone Company of the injuries and death of her husband, and on the same day filed a, claim with the commission for compensation arising out of his death.

After appropriate proceedings before the commission" an order was passed by it on the 8th day of July, 1916, ordering the Keystone Lime and Stone Company, employer, and the Travelers’ Insurance Company, insurer, “to> pay unto Miehe ⁵⁶⁴ lina Smajda the sum of $5.25 per week, payable weekly, for the period of eight years from the 8th day of June, 1916, for the death of her husband, and such further sum, not to exceed $75, on account of funeral expenses incurred by reason of the death of Frank Smajda.” Pursuant to the above order, the compensation awarded thereby was regularly paid to Miehelina Sinajda until a few weeks prior to February 17th, 1921, when the Travelers’ Insurance Company refused to continue the weekly payments, and, on the day last named, Moses W. Rosenfeld, for .and on behalf of Miehelina Smajda, wrote the commission informing it of the insurance company’s refusal to continue the weekly payments required under its order, saying that a representative of the company had stated to him that the reason for its refusal was that another party was claiming compensation and that, as stated by such party, the deceased employee of the Keystone Lime and Stone. Company was not the husband of Miehelina Smajda. Upon the receipt of this letter the commission wrote to the insurance company, insisting upon its compliance with the commission’s order of July 8th, 1916, until relieved by it of liability thereunder. The record does not disclose any reply to this letter from the insurance company but, on the 31st day of March, 1921, John E. Magers, attorney for one Rosa Kabat, wrote the commission enclosing a claim for compensation made by her as next friend of Lillian and Leonard Kwiatanouski, at that time aged fifteen and seventeen years respectively, arising out of the death of Joseph Kwiatanouski, sometimes called Joseph Bloome, the father of said infants, who died on the 8th day of June, 1916, as the result of injuries sustained that day while in the employ of the Keystone Lime and Stone Company near Port Deposit, Maryland.

In this letter to the commission Mr. Magers stated: “It seems that this party was also identified by a woman by the name of Miehelina Smajda, as her husband, and compensation was awarded her under Claim No. 6506, claiming that the deceased was her hus ⁵⁶⁵ band, Frank Szmajda, which compensation she has. been receiving for several years. “Rosa Rabat, 522 S. Washington Street, Baltimore, Md., has had the custody of the two children of Joseph Kwiatanouski for about 10 years; the wife being-confined in Spring Grove Asylum, and she is making the enclosed claim on behalf of the children. “It appears that Joseph Kwiatanouski placed the two children with Mrs. Kabat, and had been paying her for their support until his death in June, 1916, since which time she has been caring for them herself. “She had made a number of efforts to locate the deceased, and has only recently been able to ascertain that the man who was killed was called Joseph Bloom, but was in reality Joseph Kwiatanouski, and the father of the two children in her care. “I am writing these additional facts so that the commission may institute whatever investigation they may desire, to the end that the proper beneficiaries or dependents may be paid compensation.” On April 1st, 1921, a notice, and copy of the- claim so filed with the commission by Rosa Kabat, were sent to1 both the Keystone Lime and Stone Company, the employed*, and the Travelers’ Insurance Company, the insurer, and they, together with Michelina Smajda, were, on April 19th, 1921, told by the commission in a letter to them that a hearing in the case had been requested by some of the parties interested on the following grounds: “(1) To determine whether or not claim was prop- ■ erly filed, it being claimed that Joseph Kwiatanouski was the deceased employee, and not Frank Szmajda (or Smith). “(2) To determine dependency. “This hearing will be conducted by the commission under authority of the commission on Tuesday, May ⁵⁶⁶ 3rd, 1921, at 10 A. M., at 741 Equitable Btfilding. Baltimore, Md.” “Please accept this notice to be present or represented if you desire, and notify the commission if you bare any witness wbom you desire to have summoned.” A bearing was had by the commission on the day named in this notice:, at which Miehelina Smajda, Rosa Kabat, claimant, Keystone Lime and Stone Company, the employer, and the Travelers’ Insurance Company, the insured, were present and represented by counsel. The evidence offered at the hearing by Rosa Kabat in support of the claim made by her was in substance as follows: That Joseph Kwiatanouski some years prior to 1916., at the time when his wife became mentally deranged and was sent to an asylum, left his two infant children in the care and custody of Rosa Kabat, to whom he paid therefor the sum of three dollars per week. This he continued to pay weekly until the year 1916, when he left the City of Baltimore in search of work.

Thereafter they heard no more of him and what became of him was unknown to them. No effort, it seems, was. made to discover his whereabouts until several years thereafter, not until some time in the year 1920 or 1921. The reason given therefor being that after his departure this country in 1917 became involved in the Great World War, and because of it they were not able to make the necessary search for him. But two years after’ its close, John Kabat, the son of Rosa Kabat, became actively interested in a search for Joseph Kwiatanoushi.

He learned, it seems, that Kwiatanouski, .after leaving Baltimore in 1916, had worked in one of the quarries at or near Port Deposit and that, in June, 1916, a man employed therein had been injured and carried to the hospital in Havre de Grace, where he died. Upon a visit to the quarry he obtained certain information from those employed at the quarry on June 8th, 1916, concerning the accident occurring on that day, resulting in ⁵⁶⁷ the injury and death of its employee^ which led to the filing of the claim for compensation by Posa Kabat. At the1 hearing before the commission a number of men, including the superintendent of the quarry, who had worked with and who knew the injured man before and at the time he sustained the injuries, from which he died, described his general appearance, giving the color of his hair, and mustache and, in their opinion, his age, weight and height. A photograph of two men was then produced, one of whom was Joseph Kwiatanouski, sometimes called Joseph Bloom, as shown by the evidence of a number of persons who had known him for a long time, including Stanislaw Poutoski, the other man in the photograph, with whom Kwiatanouski had lived for at least seven months prior to his departure from the city.

This photograph was shown to the men who, we have said, worked with the man who was killed .at the quarry on the day named, and each of them testified that the man to the left in the photograph, Joseph Kwiatanouski, was the man that was killed at the quarries on the 8th day of June, 1916, and that he was the only man killed on that day. It was shown by the defendants at the hearing that the man killed at the quarry on the 8th of June, 1916, when first employed by the Keystone Lime and Stone Company, stated that his name was Erank Smith, which in the Polish language is spelled F-r-a.-n-c-o-i-s Skm-a-j-d-a, and pronounced “Smyder” and this name was entered upon the books of the company; that after his injury he was immediately carried to the hospital in Havre de Grace, where he again gave his name as Frank Smith, and that name was written upon a card and placed upon his bed, and after his death a telegram was sent to the family of Frank Smith (Smajda) at his address, 604- Bond Street, in