Outten Bros. v. Dunn

Marbury, J., delivered the opinion of the Court. . Outten Brothers, Inc. of Salisbury (employer) and Selected Risks Insurance- Company (insurer) appealed from a judgment entered by the Circuit Court for Wicomico County modifying a decision of the Workmen’s- Compensation Commission that Audrey Mae Larmore Dunn (claimant), widow of Robert Turpin Dunn (husband or deceased), was partially but not totally dependent upon the deceased at the time of his injury within the meaning of Code (1957), Article 101, § 36 (8). - The Commission heard the case and awarded the claimant $5000. She appealed to the Circuit Court where the case was ⁵⁹³ heard before a jury. At the close of all of the evidence, the court denied the instructions submitted on behalf of the employer and insurer for a directed verdict in their favor on the sole issue of whether the claimant was partially or totally dependent upon the deceased for support.

The jury found she was totally dependent, and the appellants’ motion for judgment n.o.v. was overruled. Besides contending here that these rulings were erroneous, appellants also insist the trial judge was in error in refusing to admit evidence of the income of the decedent and claimant prior to 1960. On the date of the injury and death, March 9, 1962, the deceased was working as a collector-salesman for Outten Brothers, at an average weekly wage of $76.96. Claimant was engaged in the custom tailoring business, as she had been for eighteen years.

Prior to October 1961 she had her shop in R. E. Powell’s department store. In 1960 she earned $2155.55 and in 1961 $1200. In October 1961 Mrs. Dunn developed trouble in her left arm, ultimately found to be a blood clot and tumor, necessitating surgery the following June. When her physical disability arose in October, Mrs. Dunn left Powell’s, after which she conducted her tailoring business in her home on a limited basis, employing two helpers.

She was assisted by her husband, who in hours outside of his employment helped her by delivering orders for her and driving her about to get supplies. Appellants quote in their brief our definition of total dependency found in Larkin v. Smith, 183 Md. 274, 280 , 37 A. 2d 340 , itself a quotation from an Indiana case, as follows: “ ‘Total dependency exists where the dependent subsists entirely on the earnings of the workman; but in applying this rule courts have not deprived claimants of the rights of total dependents, when otherwise entitled thereto, on account of temporary gratuitous services rendered them by others, or on account of occasional financial assistance received from other sources, or on account of other minor considerations or benefits which do not substantially modify or change the general rule as above stated.’ ” ⁵⁹⁴ They argue, however, that inconsistencies and contradictions in the claimant’s testimony are such that it lacks the probative force necessary to support her claim. Questions of dependency are determined under facts existing at the time of the injury which proved fatal, Code (1957), Article 101, § 36 (8)(d). The record shows that many of the discrepancies concern earnings of both the claimant and her husband in 1961 and 1960, and lapses of memory could have been expected and were properly left for the jury’s consideration.

Besides, there was also direct testimony that the claimant was supported by her husband.