Beth.-Fair. Shipyard v. Rosenthal , 185 Md. 416 ( 1945 )

In some jurisdictions, in some circumstances (e.g., when husband and wife live together) the presumption of total dependency is a conclusive presumption, i.e., not a presumption at all, but a rule of substantive law, that the widow is entitled to compensation regardless of dependency. In Maryland the presumption is a prima facie presumption, i.e., a true presumption, which affects only the burden of proof, whether (a) in the primary sense of the risk of non-persuasion or (b) in the secondary sense of the burden of going forward.

In the instant case presumptions (of total dependency and of correctness of the Commission's decision) and burden of proof play no real part. They require us to assume the truth of the claimant's testimony and of any permissible inferences favorable to her. Regardless of presumptions, we could do no less. All the evidence comes from the claimant herself. Not only is her testimony uncontradicted, but the facts are essentially undisputed. Whether on the undisputed facts she was totally dependent is a pure question of law. Moore v. Clarke,171 Md. 39, 46, 187 A. 887, 107 A.L.R. 924; Albright v. PennsylvaniaRailroad Company, 183 Md. 421, 37 A.2d 870; Heaps et al. v.Cobb, 185 Md. 372, 45 A.2d 73.

Undisputed facts are that: The husband came from New Jersey to Baltimore on July 1, 1942; the wife followed on August 8, 1942. In New Jersey "he made $30 sometimes $40 sometimes less a week." Out of that she would save $15 — or more. From the time the husband came to Baltimore until July or August, 1943, his average weekly earnings were about $47. On July 25, 1944, when he was killed, they were about the same; previously for a time he worked seven days a week and made about $60. The wife worked for Bethlehem-Fairfield from August, 1943, till his death, and previously for another employer for about ten weeks. On July 25, 1944, her average weekly wage was $30. She then had about $3,800 in bank, including $800 her son had given her to hold for him when he went into the service. She never worked before the War, and did not intend to continue to work after her son got back.

Total or partial dependency is a question of degree. On the principle de minimis inconsequential temporary resources of the dependent are disregarded. Larkin v. Smith, 183 Md. 274,37 A.2d 340. A year is a small part of recorded history, and $30 a week is an inconsequential part of the national income or expenditure. But in comparison with the husband's earnings of $47 a week, or with compensation of $18 a week, on a question whether the total compensation shall be $3,000 or $5,000, $30 a week for a year up to the time of his death, with $3,000 in bank, is neither temporary nor inconsequential. The fact that she saved all her earnings is not evidence of dependency, but rather of comparative independence. To say that she was wholly dependent upon her husband at the time of his death, I think, does violence to the statute and to the English language.

Judge HENDERSON authorizes me to say that he concurs in this dissent.