Baltimore Pub. Co. v. Hendricks

• Decision Date: 21 November 1928
• Docket Number: 26.
• Citation: 143 A. 654,156 Md. 74
• Parties: BALTIMORE PUB. CO. ET AL. v. HENDRICKS.
• Court: Maryland Court of Appeals

143 A. 654

156 Md. 74

BALTIMORE PUB. CO. ET AL. v. HENDRICKS.

No. 26.

Court of Appeals of Maryland

November 21, 1928

Appeal from Baltimore City Court; H. Arthur Stump, Judge.

Proceeding under the Workmen's Compensation Act by Maurice W Hendricks, claimant, for injuries, opposed by the Baltimore Publishing Company, employer, and the Maryland Casualty Company, insurer. From an award of the Industrial Accident Commission, the employer and insurer appealed to the Baltimore city court, and from the judgment the employer and insurer appeal. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, and SLOAN, JJ.

G Randolph Aiken, of Baltimore (Austin J. Lilly and Clapham Murray, Jr., both of Baltimore, on the brief), for appellants.

Leon H A. Pierson, of Baltimore (Richard E. Preece, of Baltimore, on the brief), for appellee.

ADKINS J.

Maurice W. Hendricks, the appellee, an employé of the Baltimore Publishing Company, one of the appellants, was on April 16, 1926, struck on the head by a stone; the accident arising out of and in the course of his employment as a substation manager. The other appellant, the Maryland Casualty Company, was the insurer. At the time of the accident Hendricks was 16 years of age, and his salary with commissions averaged $12 per week. He was totally disabled for work for six or seven months and was awarded by the Industrial Accident Commission on May 14, 1926, $8 a week during the continuance of his total disability, which was paid by appellants for a period of 23 2/3 weeks, terminating the 1st day of October, 1926. On September 9, 1926, Hendricks filed a second application for compensation, being for permanent partial disability resulting from loss of hearing of his right ear caused by said accident, and was awarded compensation for total loss of hearing in one ear at the rate of $8 per week for 50 weeks, being the full schedule allowance for that specific injury, payment of said compensation to begin as of October 2, 1926, at the termination of the award for temporary total disability. Compensation under the second award was paid by appellants. On or about October 1, 1926, Hendricks returned to work with the Baltimore Publishing Company in his former position, and regularly earned from $14 to $16 per week in salary and commissions, without losing any time until December, 1927, at which time he was laid off because of a change in management, and not because of any disability on his part in or for the performance of his work. On November 1, 1927, he filed a third application, this time for compensation for disability claimed to be the result of the loss of sense of equilibrium, as manifested by certain attacks of dizziness or vertigo which he, as claimed, suffered whenever he became excited, and which attacks were claimed to be the result of injury to the vestibular tract of the right ear caused by the accident. The commission awarded him additional compensation for permanent partial disability in the sum of $1,000 payable at the rate of $8 per week for 125 weeks, to begin as of the date of the termination of the compensation under the second award. This additional compensation for permanent partial disability, as alleged, was made under subcaption "Other Cases." From this last award an appeal was taken to the Baltimore city court. At the hearing upon the third application for compensation before the commission, and at the trial upon appeal to the Baltimore city court, the physicians produced as witnesses by the appellants testified that in their judgment the symptoms and attacks of dizziness complained of were temporary and would gradually improve and within the next three years entirely disappear; and the physicians testifying for the claimant said in their judgment the symptoms and attacks of dizziness were permanent in their nature.

On February 21, 1928, about three months after he was laid off by the Baltimore Publishing Company, Hendricks secured work as an ordinary laborer at the plant of the Crown, Cork & Seal Company, where he worked continuously and was still employed at the time of the trial before the Baltimore city court on February 28, 1928, earning 30 cents per hour, or $13.50 per week--the regular wage paid by said company for such work. A physician testifying for claimant stated that in his opinion the claimant could not perform any work which required great changes of position, or any work in the water, such as swimming; he could only work on the ground.

The above is an agreed statement of facts for the record, counsel agreeing that it was unnecessary, for the proper determination of the issues in this case, that the proof be set out in extenso, and further agreeing that said facts are the only facts that are pertinent to the issues and constitute an accurate digest and résumé of the testimony adduced in the trial before the commission and before the court.

There was but one issue submitted to the jury, and that at the request of appellants, viz.:

"Does the alleged loss of balance or sense of equilibrium complained of by Maurice W. Hendricks constitute a permanent partial disability?"

Appellants offered three prayers:

The first asked for a directed verdict in favor of the employer and insurer on the ground that there was no evidence legally sufficient to entitle the claimant to recover.

The second asked for an instruction that the presumption of correctness in favor of the award and decision of the commission was a rebuttable one; that is to say, subject to evidence tending to prove that said award is incorrect.

The third presented the proposition that the jury should answer the issue "No" if the jury should find from the evidence that the average weekly wages of claimant since the accident had been equal to or greater than his wages per week at the time of the accident.

The court granted the second prayer and refused the first and third. The only bill of exception is to the refusal of said prayers. The first prayer is bad in form. Schiller v. B. & O. R. Co., 137 Md. 240, 112 A. 272.

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