Bank v. Charles Meyers & Co.

• Decision Date: 15 December 1943
• Docket Number: 41.
• Parties: BANK v. CHARLES MEYERS & CO.
• Court: Maryland Court of Appeals

35 A.2d 110

182 Md. 556

BANK v. CHARLES MEYERS & CO.

No. 41.

Court of Appeals of Maryland

December 15, 1943

Appeal from Baltimore City Court; George A. Solter, Judge.

Proceeding under the Workmen's Compensation Act by Benjamin Bank claimant, opposed by Charles Meyers & Ci., employer. A decision of the State Industrial Accident Commission awarding compensation was reversed by the Baltimore City Court, and the claimant appeals.

Affirmed.

William Hoffenberg and Albert A. Levin, both of Baltimore, for appellant.

Robert D. Bartlett, of Baltimore, for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, MELVIN, ADAMS and BAILEY, JJ.

BAILEY Judge.

Benjamin Bank, the appellant in this case, a citizen of Maryland and a resident of Baltimore City, while employed as a traveling salesman by Charles Meyers & Co., the appellee, of St. Louis Missouri, was severely injured on November 4, 1939, as the result of an accident arising out of and in the course of that employment.

The appellee, at the time of the accident and at the time of the trial of this case, was a manufacturer of men's trousers, maintaining two places of business, one, the main office of the company, in St. Louis, the other, a sales office, in Chicago, Illinois. It is admitted that it has never maintained a place of business in Maryland.

In August 1939, the appellant applied by letter to the appellee for a position as traveling salesman for the territory comprising the States of Maryland, Delaware, North Carolina, South Carolina, Georgia, most of Virginia and Florida, and the District of Columbia. Thereafter a series of letters passed between the parties and Bank was advised that the final decision as to his employment could not be made until he had been interviewed by a Mr. Silverman, who was described in one letter as the 'Executive Field Sales Manager' of the appellee. Silverman came to Baltimore and conferred with Bank at the Emerson Hotel on October 15, 1939. On October 17 he wrote to his company stating that Bank was rejected and adding 'I am going to stay here as long as I find necessary and until I place a man on the job'. Evidently Silverman did not inform Bank of his rejection, for on October 23 Bank telegraphed the company inquiring as to his status, and on the same day the company wrote him that a copy of his telegram was being sent to Silverman 'for whatever disposition he sees fit.' Several days later Silverman and Bank met again at the Emerson Hotel in Baltimore and as a result of that conference Bank was employed. At that time Silverman gave to Bank sample cases of trousers, swatches, stationery and a partial list of delinquent accounts.

Bank lived at 821 Chauncey Avenue, Baltimore, and the accident occurred in front of 806 Chauncey Avenue on November 4, 1939. The details of the accident are immaterial as it is admitted that the injuries suffered by Bank arose out of and in the course of his employment by the appellee. As a result of the accident he was temporarily totally disabled until July 12, 1940. He filed his claim for compensation with the State Industrial Accident Commission of Maryland on December 9, 1939. On January 2, 1940, the Commission passed an ex parte award allowing him compensation at the rate of $20 per week during the continuance of his disability. Subsequent to the filing of his claim with the Maryland Commission, he filed a claim with the Missouri Workmen's Compensation Commission, and on April 25, 1940, upon the suggestion of one Schein, Vice-President of appellee, he requested that the order of the Maryland Commission passed on January 2, 1940, be rescinded and annulled pending the outcome of the Missouri proceedings. By its order dated April 27, 1940, the State Industrial Accident Commission rescinded and annulled its order of January 2, 1940, and held the case pending further consideration.

The claim before the Missouri Workmen's Compensation Commission was filed against the appellee, as employer, and Bituminous Casualty Corporation, as insurer. The insured filed its answer to the claim, contending that the Missouri Commission was without jurisdiction for the following reasons: first, that the contract of employment was made in Baltimore, Maryland, and the place of the accident was the State of Maryland; second, that the claimant had obtained an award in his favor against the employer for compensation and medical expense arising out of his accident of November 4, 1939. The second reason refers, of course, to the previous order of the Maryland Commission dated January 2, 1940. The hearing was held before a member of the Missouri Commission on November 28 and 29, 1940, and on March 12, 1941, there was an award on hearing in favor of the employer and insurer based upon a finding from the evidence that the contract of employment was not made in the State of Missouri and that the accident occurred in the State of Maryland. The case was submitted on review to the entire Commission and affirmed by its order dated May 9, 1941, as follows: 'We find from all the evidence that the contract of employment herein was not made in the State of Missouri and that the accident occurred in the State of Maryland. This Commission therefore, has no jurisdiction in the premises and compensation is accordingly denied. (Section 3700, R.S.Missouri, 1939 [Mo.R.S.A.])'. The Missouri Workmen's Compensation Law, Mo.R.S.A. § 3700(b), provides that: 'This chapter shall apply to all injuries received in this state, regardless of where the contract of employment was made, and also to all injuries received outside of this state under contract of employment made in this state.'

Thereafter Bank requested the Maryland Commission to reopen his claim and the employer appeared specially and requested a hearing to determine whether the employer was subject to the Workmen's Compensation Law of Maryland. Upon this issue the Commission, on September 4, 1942, found that the employer was subject to the Workmen's Compensation Law of Maryland at the time of the accident and ordered the employer to pay to Bank compensation at the rate of $20 per week, payable weekly, from November 8, 1939, to July 12, 1940. The employer then appealed to the Superior Court of Baltimore City, but upon suggestion of Bank the case was removed to the Baltimore City Court, where it was submitted to the court for determination without the intervention of a jury upon the following issue: 'Is the employer, Charles Meyers & Co., subject to the Workmen's Compensation Law of Maryland?' The answer of the court to the issue was 'No', whereby the order of the State Industrial Accident Commission dated September 4, 1942, awarding compensation to the claimant, was reversed. On April 26, 1943, after a motion for new trial was overruled, the court entered a judgment for the employer for costs. It is from this judgment that the claimant has appealed. The appeal comes to this court under Trial Rule 9(c) of the General Rules of Practice and Procedure, 1941, and is taken and heard according to the practice in equity. In compliance with subsection (a) of said Rule, the trial court has stated the grounds for its decision in an opinion which is contained in the record.

As originally enacted the Maryland Workman's Compensation Law did not apply to outside salesmen. By Chapter 583 of the Acts of Assembly 1924, the law was amended so as to bring certain salesmen within its provisions. This Act, now codified as Subsection (43) of Section 33 of Article 101, Code 1939, provides that compensation shall be payable for injuries sustained or death incurred by employees engaged in the following extra-hazardous employments: '(43) All salesmen including sales managers employed to solicit orders from customers outside of the establishment for which they are employed, who are citizens or residents of this State employed by a person, firm or corporation having a place of...