Simmons v. B & E LANDSCAPING CO.

Smith, J., delivered the opinion of the Court. This case involves the question as to whether infant children of a deceased employee were wholly dependent upon him at the time of his death within the meaning of the Workmen’s Compensation Act, Code (1964 Repl. ¹⁴ Vol.) Art. 101, § 36 (8) (c) and (d). The Workmen’s Compensation Commission held them to be “wholly dependent”. Judge Bowen, sitting in the Circuit Court for Prince George’s County without a jury, reversed the action of the Commission.

We shall sustain the action of Judge Bowen. Louis Simmons, an employee of appellee B & E Landscaping Co., sustained an accidental personal injury arising out of and in the course of his employment on July 9, 1968. He died as a result of this injury on July 26, 1968. Mr. Simmons had not resided in the same household with his wife and family since March of 1967.

There was testimony that at some time prior to his death Simmons served a period of time in the Maryland House of Correction for nonsupport. The five minor children all resided with the wife, the appellant in this case. At the time of death the oldest of the children lacked a few months of being 17 years of age and the youngest lacked a few days of being 10 years of age. Mrs. Simmons had been employed by the Department of the Army for nearly five years prior to the death of her husband.

At that time her net salary was $168.00 every two weeks. Mrs. Simmons testified that the expense of running her household was approximately $20.00 per week for rent, $30.00 per week for food, $15.00 per month for clothing for the children, $13.00 per month for gas and electric, and $32.50 per month for oil for heating. She stated that she carried Blue Cross and Blue Shield on herself and the children, paying $4.10 every two weeks by payroll deduction. She further testified that the contribution of Simmons was $30.00 per week paid in cash plus the purchase from time to time of meat and vegetables for the family.

She thought this took place about every three weeks and estimated the value at $5.00. The husband gave the children spending money, estimated by. Mrs. Simmons to be a “couple of dollars * * * to one and the younger ones about a dollar” every two weeks. ¹⁵ The trial judge said: “I don’t think that the language of the statute nor the holdings of the Court need to be tortured out of its ordinary every day meaning in these cases. A father who is taking care of his children and providing for their necessities has wholly dependent children notwithstanding the fact that one of them may get a summertime job and make as much as $900 or that his wife may from year to year or time to time go to work and make additional money and contribute it to the total family program.

A situation where a family has five children and the husband is contributing $20 or $30 a week to their support and the wife is providing everything else and has done so consistently for years where the parties are not living together * * * is an entirely different situation. We don’t believe that under the facts of this case the mother’s contribution to this family can be deemed either occasional or inconsequential. She was in fact the bulk of the support these children, was and is the bulk of the support of her children. “Apparently the only fixed and unchanging dependency upon which they could rely. “Now I have read the Commission’s findings and comments and it is apparent to me that Judge or Commissioner Paper did in this case fall into error. He manifestly, by his comments, couldn’t resist the tug of his heart on his head and while the Court feels that same tug toward this woman, who deserves every ounce of help that she can get with these children and who in the Court’s opinion is to be commended for her industry and integrity, it is not the Court’s, within the Court’s province to give away someone else’s money and plain facts in this case we do not believe we can surmount a contribution ¹⁶ of $30 a week sometimes irregular, sometimes sporadically as opposed to a steady and continuous contribution of the remainder of everything it takes to make that household go, can not, we think, be described as anything except partial dependency.

We think these children were partially dependent upon their father because he did in fact contribute to them and because they needed more than their mother was making. He had a legal obligation to support them, he was in fact supporting them, but' his was the smaller contribution