Baltimore Towage & Lighterage Co., Inc. v. Shenton

• Decision Date: 14 June 1938
• Docket Number: 35.
• Citation: 199 A. 806,175 Md. 30
• Parties: BALTIMORE TOWAGE & LIGHTERAGE COMPANY, Inc., et al. v. SHENTON.
• Court: Maryland Court of Appeals

199 A. 806

175 Md. 30

BALTIMORE TOWAGE & LIGHTERAGE COMPANY, Inc., et al. v. SHENTON.

No. 35.

Court of Appeals of Maryland

June 14, 1938

Appeal from Baltimore City Court; Robert F. Stanton, Judge.

Proceeding under the Workmen's Compensation Act by Josephine Shenton, surviving widow of William R. Shenton, deceased employee, claimant, opposed by Baltimore Towage & Lighterage Company, Incorporated, employer, and Car & General Insurance Corporation, insurance carrier. From a judgment of the Baltimore City Court affirming the State Industrial Accident Commission's award of compensation, the employer and insurance carrier appeal.

Affirmed.

Milton Leven, of Baltimore, for appellee.

Argued before BOND, C.J., and URNER, OFFUTT, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

BOND Chief Judge.

The question in the case is whether the death of the claimant's husband by drowning could be found to have been the result of an accident arising out of his employment within the purview of the Workmen's Compensation Act Code, Art. 101.

The husband was employed by the Baltimore Towage and Lighterage Company as a truck driver, and he fell into the water of Baltimore Harbor while waiting for his truck to be loaded with pipes from a railroad car on a pier. The car was on the side of the pier, and was being unloaded from the inner side. Shenton, while waiting, was standing on the outer side of the car, about twenty feet away from his truck, on an apron of the pier, and about in the middle of a space on it ten feet wide between the car and the water, without anyone near him, when he was seen to waver from side to side then to throw up a hand, and to fall overboard. A rope was thrown to him while he was still on the surface of the water, but he appeared unable to grasp it, sank, and was drowned. His foreman had talked with him ten minutes earlier, telling him to call up his office, and had seen nothing wrong with him. Subsequently, when the foreman had walked 125 to 150 feet down the pier, he turned just in time to see the occurrence as described. He did not see Shenton immediately before he was wavering as stated, but the man did not seem to him to stumble or trip, or to be struck. There was no other eye witness to the fall. No marks, and no indications of disease, or other possible cause of the man's toppling over, were found on his body.

Compensation was allowed by the State Industrial Accident Commission, and the allowance was confirmed on the appeal below. A prayer of the employer and the insurer for direction of a verdict denying that the death was due to an accident arising out of the employment was refused, and the refusal is the main ground of appeal.

It is not disputed in the argument that the drowning occurred in the course of the man's employment. His work carried him to the pier, over deep water, to wait as he was doing. And while he was not required to wait at the particular spot there was no reason for his not doing so, or for waiting in any other spot. He was required to stand by for the time being, and he was nearby the car, and only a short distance from the work on which he was waiting. But that there was any evidence of an accident arising out of the employment to cause him to topple and fall is disputed, and that has been the ground of the argument on the question of direction of the verdict. It is, however, not the whole ground to be considered.

Assuming it to be true that there is no evidence of an accidental cause of the fall, no evidence of any occurrence exterior to the man's own body, could the drowning which followed the fall as a consequence of the man's being on the pier constitute 'death * * * resulting from an accidental * * * injury * * * arising out of * * * his employment?' Code, Art. 101, sec. 14. There was unquestionably an accidental drowning, and it would not have resulted from a fall, whatever the cause, had not the man been required to be on the pier at the time. Possibly a faint, or some other imaginable occurrence that may have caused him to topple over, would be considered a proximate cause if that is important, but when there is no possibility of a cause of the death unrelated to the employment is the compensation system concerned with a distinction between proximate and remote causes? Can that distinction be observed consistently with the fundamental purpose of transferring the burden of injury by extra hazards of an employment from the workmen to the industry? Precisely these questions have not been argued in this court in the few cases which have borne some resemblance on the facts. See Baltimore Dry Docks, etc., Co. v. Webster, 139 Md. 616, 116 A. 842; Southern Can Co. v. Sachs, 149 Md. 562, 131 A. 760, 43 A.L.R. 417. But they have been the subjects of discussion by a number of other courts. The decisions in this country disagree.

In England, compensation has been allowed is such cases since the decision in Wicks v. Dowell & Co., Ltd., [1905] 2 K.B. Div. 225. Wicks, while unloading coal from a ship, and standing by the open hatchway through which the coal was being raised, was seized with an epileptic fit, and fell into the hold, to his injury. Collins, M. R., said, page 229 'When we get rid of the confusion caused by the fit and the confusion involved in not dissociating the injury and its actual physical cause from the more remote cause, that is to say, from the fit, the difficulty arising...