Toadvine v. Luffman

Orth, J., delivered the opinion of the Court. The question presented on this appeal is whether the Circuit Court for Wicomico County erred in confirming the decision of the Workmen’s Compensation Commission that two minor children were totally dependent for their support upon their father at the time he died from an accidental personal injury arising out of and in the course of his employment. The only issue involved is the total dependency of the children. 1 Chief Judge Murphy of this Court, who, by special assignment, delivered the opinion of the Court of Appeals in Johnson v. Cole, 245 Md. 515 , summarized the governing principles of dependency under the Act: “As we noted in Mullan Construction Co. v. Day, 218 Md. 581 (1959) a ‘dependent’ within the meaning of the statute is one who relies in whole or in part upon the workman for the reasonable necessities of life at the time of the accident. Generally, one who subsists entirely upon the earnings of a deceased employee is a total dependent but a legal or moral obligation to support a person does not create dependency in the absence of actual support.

Mario Anello and Sons, Inc. v. Dunn, 217 Md. 177 (1958). A ³³⁶ claimant need not, however, show destitution in order to obtain an award as a total dependent. He may receive temporary gratuitous services, occasional financial assistance or other minor benefits from sources other than a deceased workman, but he must not have had a consequential source or means of maintenance in addition to what is received out of the earnings of the deceased. Larkin v. Smith, 183 Md. 274 (1944).

In other words, compensation should not be denied a claimant as a total dependent merely because of occasional financial aid received by him from other sources or other benefits which do not substantially affect or modify his status toward the deceased employee. Superior Builders, Inc. v. Brown, 208 Md. 539 (1956).” At 520. “In all cases, questions of dependency, in whole, or in part, shall be determined by the Commission in accordance with the facts in each particular case existent at the time of the injury resulting in the death of such employee.” Code, Art. 101, § 36 (8) (d). Making questions of dependency questions of fact was construed by the Court of Appeals to mean “the fact of receipt of pecuniary support, whether in money, services, or otherwise in money’s worth.” Brooks v. Bethlehem Steel Co., 199 Md. 29, 33 . It is therefor that legal or moral duty to support is not necessary, and in the absence of actual support is not sufficient, to constitute dependency.

Ibid. The statutory provision does not mean that the question of dependency is necessarily a matter for the trier of fact. Although it was said in Knibb v. Jackson, 210 Md. 292 , 297 that “[t]he majority of the Court feels that dependency should not be decided as a matter of law * * *” we think it clear from the entire opinion and as it was explicated in Mario Anello v. Dunn, 217 Md. 177 at 182 that questions of dependency may be matters of law for the court. It is well settled that where the evidence, or ³³⁷ any inferences fairly deducible from it, is legally sufficient to support a rational conclusion of total dependency as opposed to the theory for a directed verdict in a jury trial, Maryland Rule 552, or a motion to dismiss in a bench trial, Rule 535, the issue is for the trier of fact. 2 “On the other hand, [the Court of Appeals] has consistently held the converse to be true, i.e., where the facts are undisputed, and permit no inference consistent with the existence of a supposed or asserted right, the existence of such right is an unmixed question of law for the court, whether the question is dependency or otherwise.” Anello at 181, citing cases.

See also Mullan Construction Co. v. Day, supra, at 586-587. Although under the statute the rights of a claimant are determined as of the date of the injury, what happened before is relevant to show the status of the parties at the time of the injury, subject, of course, to the usual rule of evidence concerning remoteness. Outten Bros. v. Dunn, 232 Md. 590, 595 . And we observe that the Court of Appeals has expressly stated that it “has refused to put a narrow construction on the meaning of the statute as to total dependency.” Knibb v. Jackson, supra, at 297.

In the instant case the facts adduced to show the status of the parties at the time of the injury were not disputed. No transcript of proceedings before the lower court appears in the record sent to us. We assume that the case was submitted to the lower court on the record before the Commission, including the transcript of the proceedings at the hearing. The claimant was Hollis Gene Luffman, deceased employee — Barbara Ann Luffman, widow, who as mother and as next friend and guardian of Violet J. Luffman and Patricia A. Luffman are the appellees here.

The employer was Virgil F. Toadvine, Jr. and Vesta I. Toadvine, t/a Virgil Toadvine & Son, and its insurer was Nationwide Mutual Insurance Co., who are the appellants. The evidence adduced at the hearing ³³⁸ consisted of a Certificate of Marriage showing that the Luffmans were married in 1957, proof by proper certificates of the birth of two children of the marriage, Violet Jean Luffman on 3 February 1958 and Patricia Ann Luff-man on 2 December 1960, the certificate of death of Hollis Gene Luffman on 16 July 1970, the same day he was injured, 3 and the testimony of Barbara Ann Luffman, the only witness. Her uncontroverted testimony and various stipulations showed that at the time of Luffman’s death they were living together as husband and wife. Their two daughters lived with them.

Both she and her husband were employed. Each had worked regularly for some years, he as a plumber for Toadvine and she in a shirt factory. In 1969 he earned $5,482.70; she earned $3,572.74. For the two months immediately preceding his death his average weekly wage was $125; her average weekly earnings were between $72 and $93 on piece rate.

Her husband would bring his pay home. “We would go to the bank have the check cashed together or he would have it cashed and give the whole check to me. * * * I * * * taken both of them and paid the bills and whatnot, I did. He give his check to me.” She said all the money went for the support and maintenance of her family. All of her money was “put into the home” and all of his money was “put into the home.” She said that at the time of her husband’s death he was contributing only to the support of her and their children. Asked: “And you and he both contributed to their support and taking care of your house and so on ?”, she replied, “They fully depend on him.

Actually, I partially depend on him,” although her money “went into groceries and paying [their] bills and so on” just like his did. On inquiry by the Commission it was elicited that she had not “lost too much time” from her work before her husband’s death. “The only thing is, see, I had to depend on him if I wasn’t able to work.” They had no savings or checking account. The house they lived in was rented for $90 a ³³⁹ month. The food bill for the family was between $30 and $40 a week.

The transcript reads: “THE COMMISSION: Did I understand you to say that you paid all of the bills that your husband brought his money home and you took the money and disbursed it? A. I handle the money. Now, he paid the bills but I give him the money to do it with after he give it to me. THE COMMISSION: He give you the money and you doled it out, back out to him when the electric light bill or gas bill or phone bill . . .

A. I gave it back to him sir. THE COMMISSION: Told him to go pay the bills? A. No. I didn’t have to tell him, he was willing to do it. THE COMMISSION: In other words, you knew where the money was going when you gave it to him?

A. Yes, sir.” On redirect examination she said she and her husband operated a restaurant and that there were “quite a few debts from that restaurant still outstanding.” The Subject was not further pursued. On this evidence the lower court made factual findings that “Barbara Ann Luffman was regularly employed at the time of her husband’s death and in 1969 earned something in excess of $3500, that during the same period her husband earned an amount in excess of $5400. The entire earnings of both parties were pooled, the wife having control of the fund, and all of the money was used in the home for the support and maintenance of the family, as well as the general expense and upkeep of the home.” It concluded: “ [¶] ere we have a situation with a father under a legal and moral obligation to support his ³⁴⁰ minor children and actually throwing into a common fund his entire earnings, along with those of the mother, which money went for the actual shelter, clothing, and food of the children. No accounting of who earned which dollar spent is had, nor should it be required.

It is my feeling that the small amount contributed by the mother could do no more than form the basis of the holding that she was a partial dependent. I do not believe that it should go so far as to hold the mother made any substantial contribution toward the upkeep and maintenance of the children.” It confirmed the Order of the Commission. The factual findings of the court are in accord with the evidence before it. Both appellants and appellees agree that all the income of Mr. Luffman and Mrs. Luff-man “went to the support and maintenance of the family.” But, accepting the facts as found, we are not able to accept the reasons advanced by the lower court in reaching its decision.

First, as we noted supra, a legal or moral duty to support is not sufficient to constitute dependency, so the duty of Luffman to support his daughters was not relevant to the issue of their dependency. Second, even if such duty were relevant, it would not be germane, for Mrs. Luffman had an equal duty legally to support their daughters. “The father and mother are the joint natural guardians of their minor child and are jointly and severally charged with its support, care, welfare and education. They shall have equal powers and duties, * * *.” Code, Art. 72A, § 1. Nor could we say that the moral obligation of the mother to support the children was any less than that of the father.

Third, we do not agree that the earnings of Mrs. Luff-man constituted a “small amount” and made no “substantial contribution.” They comprised about 40% of the total income. We feel that their regular contribution amounted as a matter of law to a consequential source of the combined funds. ³⁴¹ Appellants claim that in any event upon the evidence tending to establish and the court finding that the earnings of Mr. and Mrs. Luffman were pooled and the family supported and maintained out of the pooled funds, “the conclusion necessarily followed as a matter of law that both the wife and the children were partial, and not total, dependents.” They urge that this was the precise holding in Knibb v. Jackson, supra, Mario Anello v. Dunn, supra, and Mullan Construction Co. v. Day, supra, and that a contrary conclusion could be reached only by departing from the ruling in those cases. The three cases were squarely before the lower court. 4 It had no trouble with them, considering them only as authority for finding the wife was no more than a partially dependent person. We believe they require close scrutiny.

It is correct that in both Mullan and Anello the ultimate result was a finding as a matter of law that a wife was not totally dependent but only partially dependent upon her husband for her support. In Mullan the Commission had found the wife to be partially dependent. On appeal to the Baltimore City Court the case was heard before a jury. At the close of the evidence the court refused to give instructions submitted by the employer and insurer for a directed verdict in their favor on the issues of whether the wife was partially or totally dependent upon the deceased husband.

The jury found she was totally dependent. A motion for judgment n.o.v. was denied. The Court of Appeals held that the lower court erred in refusing to give the instructions and in denying the motion. The evidence was that the husband and wife were both employed at the time of his death, he earning $59.60 a week and she earning $30 a week.

She steadfastly maintained that she and her husband had never pooled their earnings. “She used her money to buy things she needed around the house such as linens and dishcloths. Some of it was also used for church and carfare. And she bought small things for herself such as hose ³⁴² and gloves at a cost of less than ten dollars a week. She could not explain, however, what was done with the remainder of her weekly earnings, but stated that she spent the couple of dollars she had left over at the end of the week on herself.

She