Baltimore Dry Docks & Ship Bldg. Co. v. Webster

• Decision Date: 10 January 1922
• Docket Number: 29.
• Parties: BALTIMORE DRY DOCKS & SHIP BUILDING CO. et al. v. WEBSTER.
• Court: Maryland Court of Appeals

116 A. 842

139 Md. 616

BALTIMORE DRY DOCKS & SHIP BUILDING CO. et al. v. WEBSTER.

No. 29.

Court of Appeals of Maryland

January 10, 1922

Appeal from Superior Court of Baltimore City; James P. Gorter Judge.

Proceedings under the Workmen's Compensation Act by Eva Webster for compensation for the death of her husband, Victor Webster opposed by the Baltimore Dry Docks & Ship Building Company employer, and the United States Fidelity & Guaranty Company insurer. Award by the State Industrial Accident Commission for claimant, and from order of superior court confirming award, the employer and insurer appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and OFFUTT, JJ.

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

Southey F. Miles, of Baltimore, and Joshua W. Miles, of Princess Anne, for appellee. PATTISON, J.

This appeal was taken by the Baltimore Dry Docks & Ship Building Company, employer, and the United States Fidelity and Guaranty Company, insurer, from an order of the superior court of Baltimore city confirming an order of the State Industrial Accident Commission allowing compensation to the claimant, Eva Webster, for the death of her husband, Victor Webster.

Victor Webster, the deceased, was, on the 20th day of April, 1920, employed by the Baltimore Dry Docks & Ship Building Company as a carpenter upon a vessel then in course of construction by said company. About 9 o'clock in the morning of that day Webster went from one of the lower decks of the vessel through the cabin to and upon the upper or top deck, carrying with him the tools with which he worked, consisting of brace and bit, saw and ax. It was while there that he fell from said deck to the ground below, causing a compound fracture of the left side of the skull, extending to the base of the brain, from which injury he died on the same day.

The employer, in its report to the State Industrial Accident Commission, which under the statute it was required to make, in describing how and in what manner the accident occurred, stated that the deceased, "while rising up from laying down tools, stepped on a rivet, which caused the patient to fall backwards off the ship, falling a distance of 45 feet, striking his head on the step below."

Upon being notified by the Commission that Eva Webster had filed with it her claim for compensation for the death of her husband, the insurer, the United States Fidelity & Guaranty Company, asked that it be given a hearing upon the claim for compensation so made by the wife, upon the following grounds: (1) That injury did not arise out of, or occur while in the course of employment; (2) that the death was not the result of an accident; (3) to determine the extent of dependency, and upon such other further grounds, both legal and equitable, as may appear at the hearing.

The bearing was had as requested, at which evidence was adduced both in support of and against the claim so made, and at the conclusion of the hearing the commission announced its findings, which were:

"That Victor Webster was injured on the 20th day of April, 1920, while in the employ of the Baltimore Dry Docks & Ship Building Company; that as a result thereof he died on the same day; that said injury and death arose out of and in the course of his employment; that his average weekly wage was $35; that he left surviving him his widow, Eva Webster, who was wholly dependent upon him for support at the time of his injury and death, and is therefore entitled to an award of $17.50 per week, not to exceed $4,250 in the aggregate, said payments to begin as of April 20, 1920, or until further order of this commission."

On September 22, 1920, an order, in conformity with said findings, was passed by said commission, directing that said compensation so allowed be paid to the claimant by the Baltimore Dry Docks & Ship Building Company, employer, and the United States Fidelity & Guaranty Company, insurer, from which an appeal was taken by the said employer and insurer to the superior court of Baltimore city.

The case was submitted to Judge Gorter, sitting without a jury, upon the record transmitted from the Industrial Accident Commission to said court. The appellant asked two questions of the court, and submitted to it one prayer. By the first of these questions the court was asked:

"Was the death of Victor Webster on the 20th day of April, 1920, due to a fall occasioned by a vertigo or epileptic fit."

The court declined to answer this question, because, as it stated, its determination was not material to the decision of the case. The court was asked by the second question:

"Was the death of Victor Webster on the 20th day of April, 1920, occasioned by an injury received in the course of and growing out of his employment."

To this question the court answered, "Yes."

By the appellant's prayer the court was asked-

"to declare the law that, if it finds, sitting as a jury, from the evidence, Victor Webster met his death on April 20, 1920, as the result of a fall occasioned by a vertigo or epileptic fit, then the verdict must be for the defendant, notwithstanding that the court further found the fact that he was engaged in work at the time growing out of and in the course of his employment."

This prayer was refused by the court.

The only exception found in the record is to the rulings of the court in refusing the appellant's prayer and in refusing to answer the appellant's first question. If we understand correctly the position of the appellants, they concede that the decedent, at the time of his death, was engaged in an extrahazardous occupation, and that his death resulted from an accidental personal injury sustained by him in the course of his employment; but they deny that his death resulted from an injury arising out of his employment. To entitle the claimant to compensation it was not only necessary that it be shown that death resulted from an injury sustained by the employee in the course of his employment, but also that his death resulted from injuries arising out of his employment.

It will be seen from the court's answer to the second question that he found that the death of the employee resulted from the injury sustained by him arising out of his employment, as well as in the course of his employment. It is contended by the appellants that the employee's death did not result from an injury sustained by him arising out of his employment, but from an injury resulting from a fall from the deck of the vessel, caused by a fit or an attack of vertigo, with which he was at the time seized. It was upon the theory of that contention that the appellants' first question and prayer were submitted to the court.

There was some evidence produced at the hearing before the commission to the effect that the decedent was for some years prior to the accident subject to attacks of vertigo or dizziness. Dr. Stem, physician for both the employer and insurer, testified that on three different occasions covering the period between August 1, 1918, to June 1, 1919, Webster was brought to the hospital of the Maryland Ship Building Company, where the witness was then employed, suffering on each occasion with an attack of vertigo, or dizziness, and on one of these occasions he was partly unconscious; that Webster admitted to him that he had been suffering with vertigo or dizziness for 10 or 12 years. It appears from the record that the employer's report to the commission, stating how death occurred, was made out by this witness, who at the time was in some way associated with Dr. Carroll, whose name appears to said report, which is found in the record. This report stated that the accident occurred "while rising up from laying down tools (Webster) stepped on rivet, which caused patient to fall backwards off the ship." This report Dr. Stem said was made from information obtained from A. F. Johnson and John Kidd, who reported to him how the accident occurred. They both told him they saw Webster stooping down to his tools when he fell.

John Kidd, when before the commission, testified that he came through the companionway upon the poop deck, just as Webster was falling from that deck. He saw him fall, but could not say how he fell, that there was some one with him at the time, but could not say who it was; it may have been Johnson.

The deposition of Johnson was taken in New York City, before a notary public, at the instance of the employer and insurer the counsel for the respective parties being present. He testified that he was waiting for some one who was to be sent by his foreman to assist him in the work that he was to do; that while there, sitting upon a pile of lumber between the cabin and hatchway, Webster came up from the cabin bringing with him a brace and bit, saw and hatchet; that Webster spoke to him and then engaged in conversation with him; that for a few minutes Webster stood in front of him before taking his seat upon the lumber beside him; that when he did so he placed his tools upon the deck before him. Webster's home was in Somerset county, he had left his family, and had come to Baltimore, where he was temporarily engaged at work, and where he boarded in the same house with Johnson. It was in this way that he became acquainted with him. Johnson had been at work with the Baltimore Dry Docks & Ship Building Company for only one or two days before the happening of the accident; and when Webster saw Johnson upon the deck on the occasion referred to he engaged in conversation with him, first as to matters in connection with their association at their boarding house, and next in relation to Johnson's work upon the vessel, asking him, among other things, how he liked his...