Atlantic Refining Co. v. Forrester

• Decision Date: 22 April 1942
• Docket Number: 28.
• Parties: ATLANTIC REFINING CO. v. FORRESTER.
• Court: Maryland Court of Appeals

25 A.2d 667

180 Md. 517

ATLANTIC REFINING CO. v. FORRESTER.

No. 28.

Court of Appeals of Maryland

April 22, 1942

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Proceeding under the Workmen's Compensation Act by Catherine Elizabeth Forrester, widow of Henry Forrester, deceased, to recover compensation for death of her husband, opposed by the Atlantic Refining Company, employer and self-insurer. From a judgment reversing an order of State Industrial Accident Commission disallowing the claim, the employer appeals.

Judgment reversed.

Robert D. Bartlett, of Baltimore (Bartlett, Poe & Claggett, of Baltimore, on the brief), for appellant.

James O. Scrimger and Paul Berman, both of Baltimore (Eugene A Alexander, III, of Baltimore, on the brief), for appellee.

Before BOND, C.J., and SLOAN, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.

FORSYTHE Judge.

In this case the appeal is from a judgment of the Baltimore City Court which reversed an order of the State Industrial Accident Commission, disallowing the claim of Catherine E Forrester, widow of Henry Forrester, deceased, against the Atlantic Refining Company, employer and self-insurer.

The claim arose out of the death of the said Henry Forrester, an employee of the Atlantic Refining Company, on the 11th day of December 1940. The claim was heard by the commission and disallowed. The claimant appealed to the Baltimore City Court, and at the trial the single issue presented to the jury was 'Did Henry Forrester, the husband of the Claimant receive, on or about the 11th day of December 1940 an accidental injury arising out of and in the course of his employment with The Atlantic Refining Company from which injury he died?' The jury found in favor of the claimant on that issue, and the court entered a judgment for the claimant for costs, reversing the order of the commission. From that judgment the employer appealed to this court.

The first exception presented on this appeal is to the refusal of the trial court to grant the appellant's A and B prayers. Both of those prayers asked for a directed verdict. The A prayer is 'that under the pleadings in this case there is no legally sufficient evidence' etc., and the B prayer is that the claimant 'has offered no evidence legally sufficient to entitle her to recover under the issues submitted' etc.

The second exception is to the refusal of the court to grant appellant's motion for a judgment non obstante veredicto.

The facts in the case, under which the accident resulting in the death of Forrester occurred, and the facts concerning the nature of his employment, his duties and activities, are undisputed. He seems to have been a handyman, going from one thing to another as assigned by his employer. Forrester refers to himself, in his reports, as 'Lubrication man' and 'Retail Merchandiser', and his wife said 'he was more or less classed as a sales promoter and salesman and worked all over the State of Maryland. He was home about forty per cent of the time and out of town sixty per cent of the time.'

On December 9, 1940, Forrester was ordered to Aberdeen for the week. His duties while there, according to the testimony of Quay, who had him sent, were to assist Chester A. Roberts, who was opening a new filling station, in any way he could 'to get the station in a presentable condition so it would be more inviting to customers; and when that had been completed to help Roberts in other phases of the Company's instructions which would enable Roberts to get more business.' After the station had been cleaned up, Forrester was to inform Roberts about different tools that were for sale, and to help in his solicitation for dealers. Quay's instructions to Forrester were embodied in a note offered in evidence, as follows, 'Roberts is now operating the Kennedy Station, as you can see there is much to be done in instruction and cleaning. I am trusting the job to you and sincerely hope we have a snappy station by the end of the week. Be critical in your help to the operators and make them earn 100% grades. Both are capable and willing. Kindly keep this form, fill in dealer study at end of week and make notes below of daily work, return to me.' That note was signed by Quay, who was the salesman of the appellant for that locality, and whose duties were 'to sell Atlantic Refining Company's products; to instruct the dealers how to take care of the business and promote the Company's retail outlets and how to be more successful.' The witness Bishop, who is the manager for the Atlantic Refining Company, for the district of Maryland, testified 'that Forrester worked under him. That the office sent Forrester to Aberdeen for the week of December 9, 1940.'

There is testimony to the effect that when Forrester was 'out of town' on work for the appellant company he was reimbursed for his expenses, which included, room, board, laundry, and expenses for meals furnished by him to dealers, or helpers.

On the week of December 9, 1940, Forrester arrived at Aberdeen on Monday about 11 o'clock A. M. He secured a room, and at 12 o'clock noon reported to Roberts at the filling station. Both men went to the Mayflower Restaurant, about one block away, for lunch. After returning to the station, Forrester began work in helping to clean up the lubricating room. They worked until 6 o'clock. On Tuesday Forrester worked at the station from 8:15 A. M. to 10 P. M. During that time Forrester and Roberts talked about 'event days'. 'There was to have been two event days that week with the permission of Mr. Quay, * * * the event days were to be for lubrication and tire sales, and they were to go out and do some soliciting.' After closing, about 10 o'clock P. M. Forrester explained to Roberts the method of bookkeeping, which kept them at the filling station until 11 o'clock.

After closing at that hour, Roberts and Forrester decided 'to get a few beers', and Roberts took Forrester in a small truck to 'Jack's Place', which was operated by a woman friend of Roberts. While there, and on the way, Forrester was trying to persuade Roberts to buy a battery charger, a contrivance sold by the appellant company. Also, while at 'Jack's Place' Forrester invited the woman in charge to bring her automobile to the filling station on 'event day' for lubrication. After spending about two hours there, sometime after 1 o'clock A. M., Roberts and Forrester decided to go to the Mayflower Restaurant, which was about a mile in the other direction from the filling station, for sandwiches and coffee. Finding the Mayflower closed, Roberts who was driving the truck testified he 'turned to the left and went over on the Northbound traffic lane and headed toward the all night diner' which was directly next to his filling station, and in the same block where Forrester was staying. '* * * that when they were about one hundred and fifty feet from the station Forrester saw and mentioned about the lighted diner and just then the witness (Roberts) drove into a parked truck', with the result that Forrester was killed. Roberts also testified that on the way to the Mayflower 'we were talking about what we would do the latter part of the week, what things we would take up, * * * things we saw that would promote the business, * * * he was to go from door to door on solicitation business for the event days'.

The testimony has been set out at some length since the appellant's A and B prayers asked for a directed verdict because of the lack of evidence legally sufficient to entitle the claimant to recover.

The appellant's prayers were offered at the close of all of the testimony, and after refusing to grant them, the court delivered an oral charge, consuming about one half of an hour. The oral charge was taken by the court stenographer, and transcribed, but was lost. Exceptions were noted to the charge by both sides, and the court was asked to repeat it for the record. That the court declined to do, and we, of course, cannot review it.

The first question before us on this appeal is the sufficiency of the evidence to reverse the conclusion of the State Industrial Accident Commission. The decision of the commission that the accident which resulted in Forrester's death did not arise out of and in the course of his employment by the appellant company, placed upon the claimant appealing from that decision the burden of proving at the trial in the Baltimore City Court the contrary.

The statute, Art. 101, sec. 70, Flack's Code, expressly declares that on appeal from the decision of the State Industrial Accident Commission the decision of the commission shall be presumed as prima facie correct, and the burden of proof is upon the party attacking it. Jewel Tea Company v. Weber, 132 Md. 178, 181, 103 A. 476; Stewart & Co. v. Howell, 136 Md. 423, 110 A. 899; Todd v. Easton Furniture Mfg. Co., 147 Md. 352, 359, 128 A. 42

.

If there is any rule well established in cases like this, it is that where there is any question of fact involved, the parties have a right to have it submitted to a jury. Frazier & Son v. Leas, 127 Md. 572, 96 A. 764. The Court cannot assume the existence of a fact, and no action of the court should control the exercise of the jury's admitted right to weigh the evidence, no matter how strong and convincing the proof may be. Jewel Tea Co. v. Weber, supra; Baltimore & O. R. Co. v. State, to Use of Hendricks, 104 Md. 76, 64 A. 304. The decision of a fact by a jury is not reviewable by the Court of Appeals. Harris v. R. P. Dobson & Co., 150 Md. 71, 73, 132 A. 374.

But, in cases where the facts are agreed upon, or proved without contradiction, and there is no dispute to any material inference of fact, the court may decide the issue as one of law. Harrison v. Central Construction Co., 135 Md....