States Engineering Co. v. Harris

Adkins, J., delivered the opinion of the Court. This appeal is from a judgment of the Baltimore City Court, affirming an award of the State Industrial Accident Commission in favor of William J. Harris, the appellee, as a dependent of his deceased son. The award was $13.33 per week, payable weekly, for the period of seventy-five and one-sixth weeks, not to exceed $1,000. The single question in the case is that of dependency.

At the time of the death of the son he was living with his father and step-mother. The father was earning $46.15 a week and the son $20. The son was twenty-one years old. These earnings were all given to the step-mother as a family fund, and, with the exception of $5 or $6 a week, which was returned to the son, was used for family expenses.

The estimated expenses of the family, as far as the father and stepmother could remember the items, amounted to $2,694, made up of rent, food, clothing for father and stepmother, furniture, insurance, gas and electricity, coal, washing, and one or two other small items. It is apparent there were other expenditures than those included in the amount given by the witnesses, because according to the testimony there was no savings account. The father testified that when the son was not working ⁴⁸⁹ they had to cut down their expenditures, and the step-mother’s testimony was that since his death they had been obliged to curtail their expenses. There is no testimony as to what the cost of maintenance of the son was.

The court granted claimant’s burden of proof prayer, and the prayer of the employer and insurer, instructing the jury that there was no evidence of total dependency, but refused their two prayers, one that there was no evidence of partial dependency and the other that there was no evidence that claimant was “dependent at all upon his son, Lawrence Julius Harris, for support.” The exception is to the ruling of the court on the prayers, the contention of appellants being that all of their demurrer prayers should have been granted. This contention is based (a) on the fourth prayer of the employer and insurer, which was granted, to the effect that claimant was not at all dependent upon the deceased unless claimant drew more benefit from the family fund than he contributed thereto; and upon appellant’s interpretation of the meaning of that prayer, which was that “benefit,” as used in the prayer, meant personal maintenance, and that the part of the fund which would be allocated to the support of the step-mother could not be considered as a benefit to the father within the meaning of the prayer; (b) on the theory that in a proper division of the fund between the three, the portion allocable to the deceased exceeded his contribution to the fund. There are several difficulties about these theories. (1) We are not prepared to hold that, in a family arrangement such as existed in this ease, the fact that the contribution made by the son enabled the father to support his wife better than he otherwise could have done cannot be taken into consideration.

There is much to be said for the view of the Louisiana court, that assistance which had been furnished by a deceased son to parents in meeting a legal and moral obligation to support those dependent upon them was a ground of claim of dependency. Harris v. Calcasieu Long Jeaf Lumber Co., 149 La. 649 . See also Heinzelman v. New Orleans, 149 La. 215 . The same principle seems to have ⁴⁹⁰ been involved in tbe English case — Tamworth Colliery Co. v. Hall, 81 L. J. K B.

(N. S.), 159, 105 L. T. (N. S.) 449, 4 Butterworth’s W. C. C., 313. In the last mentioned case the father, who claimed dependence on a deceased son, and whose claim was allowed, was maintaining a crippled brother. Frear v. Ells, 200 App. Div. 509 , 193 N. Y. Supp. 324 , and Klein v. Brooklyn Heights R. Co., 188 App. Div. 509 , 1YY N. Y. Supp. 67, strongly relied on by appellants, are cases where those whose expenses were eliminated in considering the dependency of the claimant were, themselves claimants, and it would have been counting them twice otherwise.

(2) It could not be found from the evidence how much of the common fund was allowable to each of the three. (3) It does not follow from the fact that the father’s contribution to the fund was more than three times that of the