State Industrial Accident Commission v. Downton

⁴¹³ Stockbridge, J., delivered the opinion of the Court. Thornton Downton was a coal miner, employed by tbe 'Cumberland Big Vein Coal Co., which company had insured its employees under the Workmen’s Compensation Act in the Industrial Accident Fund. On the 20th December, 1918, Thornton Downton was injured between the tipple and the mouth of the mine, and died from his injuries on the same day. He had been married a number of years before tbe accident, but his wife had secured a divorce from him, and was not living with him when the accident occurred.

As the result of the marriage there were two children, William Oliver Downton, ten years of age, and Marian Grace Downton, seven years of age at the time of the happening of the acci•dent. By the decree of divorce there was no allowance of permanent alimony to Mrs. Downton, and the custody of the two children was given to her. They liad made their home with their mother from the time of the separation of their parents, •and except for a brief space of time Mr. Downton made no provision whatever for their support. He would frequently see them at the barbershop of his brother-in-law, or meet them on the street, and at such times was in the habit of giving them a half dollar, quarter of a dollar or dime, and on rare occasions gave them clothing, such as shoes and other articles.

The total value of these gifts is not fixed by any ■of tbe witnesses, tbe nearest approximation to it isi as being in the neighborhood of $10, or a little in excess of that ■•amount. This sum so irregularly given was entirely inade1■quate for the support of the two children, of whom he is said to have been very fond. The case was investigated by the State Industrial Accident Commission, and that Commission made an award in favor of the children, as for a ease of partial dependency. From the award of the Commission an appeal was taken to the Circuit Court for Allegany County, where the action of ⁴¹⁴ the Commission was virtually i*eversed, by reason, of the instructions granted, and the award was that provided by the Act for a case of total dependency.

Two prayers were presented to the Court, embodying the views respectively of the State Industrial Accident Commission, and of the guardian of the minor children. Those prayers are as follows: “Appellants pray the C'ourt to instruct the jury that if they find from the evidence in this case that the infant children of Thornton Downton, deceased, were under the age of sixteen years at the time of his death; that they had no property of their own and that no other* person except the said Thornton Downton was under any legal or actual liability to support them, and that they were not living apart from their father of their own choice, that then they were wholly dependent on the said Thornton D'ownton for support, and their answer to the issue of fact submitted to them should be Wes.’ ” “The defendant prays the Court to instruct the jury that a dependent is one who looks to another for support and maintenance, and who relies on another for the reasonable necessities of life, and if, from all the evidence in this case the jury believe that the infant children, namely, William Oliver Downton and Marian Grace Downton, were supported and maintained in part by other persons, than the said Thornton Downton, then their verdict mtust he for the defendant.” Bills of exception were taken to the