Bayshore Industries, Inc. v. Ziats

Decision Date28 June 1963
Docket NumberNo. 323,323
Citation192 A.2d 487,232 Md. 167
PartiesBAYSHORE INDUSTRIES, INC., and Zurich Insurance Company, v. Mary Louis ZIATS.
CourtMaryland Court of Appeals

Donald L. Merriman, Baltimore (Merriman & Merriman, Baltimore, on the brief), for appellants.

Floyd J. Kintner, Elkton (Kintner & Evans, Elkton, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY and SYBERT, JJ.

BRUNE, Chief Judge.

The main question which the parties present on this appeal (to which the others raised are subsidiary), is whether or not the appellee's claim for compensation under the Workmen's Compensation Act is barred by limitations because it was not filed in due time. This question was decided by the Workmen's Compensation Commission and by the trial court, sitting without a jury, in favor of the claimant, and the employer and its insurance carrier appeal from the order of the Circuit Court for Talbot County confirming this finding of the Commission.

This case is a companion case to Bayshore Industries, Inc. v. Ziats, 229 Md. 69, 181 A.2d 652, and on the basis of our opinion in that case the trial court in this case set aside the findings of the Commission on issue 1-4 and remanded them to the Commission for further hearing after due notice to all interested parties.

Under Code (1957), Art. 101, § 39, which was in force at the time when the accident here involved occurred and until after the filing of the appellee's claim, provided by paragraph (a) that the 'failure of an employee to file a claim for compensation within eighteen months from the date of the accident shall constitute a complete bar to any claim under this article;' but paragraph (c) states an exception to this rule in case of fraud or estoppel. It provides:

'When it shall be established that failure to file claim by an injured employee * * * was induced or occasioned by fraud, or by facts and circumstances amounting to an estoppel, claim shall be filed within one year from the time of the discovery of the fraud or within one year from the time when the facts and circumstances amounting to an estoppel cease to operate and not afterwards.'

The injury for which the appellee sought compensation occurred on October 8, 1957, but her claim was not filed with the Commission until October 14, 1959, which was a little more than six months after the expiration of the eighteen months' period allowed by paragraph (a) of § 39, supra. The appellee claims the benefit of paragraph (c) of that section. The Commission upheld her claim on the basis of estoppel. The Circuit Court rejected estoppel, but upheld her claim on the ground of duress, which it considered to amount to a kind of fraud.

The accident occurred when a solution with which the appellee, Mrs. Ziats, was cleaning off a newly manufactured toy in the course of her work for Bayshore Industries, Inc., the employer-appellant, splashed in her eye. It caused immediate injury, for which the appellee promptly consulted a doctor. The latter sent his bill to the employer; and upon its receipt a few days after the accident, a Mr. Pinkowski, an employee of Bayshore and Mrs. Ziats' superior in the company, telephoned to her and stated that Bayshore would not pay the bill. In the course of that conversation, according to Mrs. Ziats, who was the only witness in the Circuit Court, he inquired whether she was going to file a claim, and then warned her: 'If you do, you will be sorry. You will never work here again and probably no where around here any more.' Bayshore's plant was located in Elkton, in Cecil County, where Mrs. Ziats lived. She took this statement as meaning that if she filed a claim, not only would Bayshore not employ her again, but she would be unable to obtain employment elsewhere in Elkton. The appellants challenge this interpretation, but it seems to us reasonable. On this interpretation, it obviously carries a threat of blacklisting by Bayshore and by other unspecified employers in Elkton to whom Bayshore would report the matter.

The appellee worked for two or three days after the accident and was laid off because Bayshore had completed the order on which she had been working, and it was after she had been laid off that the above telephone conversation occurred. Subsequent events shown by the testimony were thus summarized by the trial judge:

'For a period in excess of a year thereafter she called the company many times inquiring about her promised employment and on these occasions either conversed with Mr. Pinkowski or one of the secretaries. On these occasions, Mr. Pinkowski kept encouraging her in respect to her employment saying he would call her, which he never did. He also repeated his threat, not to hire her if she filed a compensation claim, on several of these occasions. She kept inquiring about employment even though she was disabled from work during part of this time, because she wanted to work and kept hoping each day her condition would improve. Sometime after the lapse of more than a year, without employment by Bayshore Industries she became employed by another company; the exact time of which is not established. 'Way over a year' and within a year and a half after the accident, the exact time is not established, her eye condition worsened and she decided to 'take a chance' and find out about filing a claim. Accordingly, she called a lawyer in Elkton, whose name she learned from a telephone directory whom she did not know, and inquired about the matter. He advised her she had waited too long and could not collect on her claim. Thereafter she consulted another attorney of Elkton, Mr. Mackie, who represented her when her claim was formally filed with the Commission on October 14, 1959.'

The appellants challenge some of the findings of fact of the trial judge largely on the basis of inconsistencies between the appellee's testimony in court and her testimony before the Commission. Bearing in mind the weight to be given to the trial judge's findings where credibility is involved, we could scarcely find him to be clearly in error in accepting her testimony as given in court, including that given on cross-examination based upon her prior testimony. Furthermore, the discrepancies do not impress us as very substantial, with one possible exception. This is with regard to whether the threat made in October, 1957, was later repeated by Pinkowski. As to that matter, we cannot say that the trial judge was in error, nor do we think that threat had to be repeated in order to maintain its vitality, at least as long as the appellee was seeking re-employment by Bayshore. That, we think, is fairly inferable, was up to a time within a year of the filing of her claim.

The trial court also found that Mr. Pinkowski had apparent authority, even though he may have lacked actual authority, to speak for the employer in making the statement quoted and in other dealings with the appellee. On this matter, the trial court found that the appellee's exclusive dealings with Pinkowski in obtaining employment with Bayshore, in the handling of her physician's bill, and with regard to all statements, threats and promises concerning her future employment with Bayshore, were of such a nature and were had under such circumstances as to cause the appellee, acting as a reasonably prudent person, to deal with him at all times and in good faith in reliance upon his apparent authority. The trial court further found in substance that Bayshore's conduct in permitting Pinkowski to interview and hire prospective employees and otherwise to deal with its employees in all matters pertaining to their employment was such as would influence persons dealing with him to believe that he had authority to represent Bayshore in such matters, that the appellee had relied upon such apparent authority, and that if actual authority were in fact lacking the appellee had been misled by Pinkowski's apparent authority, and that she would be injured if Bayshore were permitted to rely upon actual lack of authority of Pinkowski in respect of hiring prospective employees (if actual authority were lacking). He concluded that Bayshore was estopped to deny the actual authority of Pinkowski.

We think that the evidence was sufficient to show that Pinkowski had apparent authority to speak for Bayshore in matters pertaining to employment. On the testimony in this case we also think that his apparent authority to speak for Bayshore in that matter cannot be separated from his apparent authority to speak in compensation matters and so to make the threat relating to the appellee's claim for compensation, for one was directly tied to the other. That threat was, in substance, if you make a claim, you will be sorry and you will never work here again and probably nowhere around here. An employee could hardly be expected to differentiate between Pinkowski's power as to employment matters and his power as to compensation matters when the two were so closely connected as the testimony indicates. Though the evidence of apparent authority is not so strong here as it was in the case of Summit Timber Products Co., Inc. v. McKenzie, 203 Md. 41, 97 A.2d 910 we think that it is sufficient to bring this case within the rule of the Summit Timber case. The instant case is clearly distinguishable from such cases as West Virginia Pulp & Paper Co. v. Morton, 185 Md. 623, 45 A.2d 725, and Champness v. Glenn L. Martin Co., 193 Md. 188, 66 A.2d 396, in which the claimant knew or should have known that the person upon whose assurance he sought to rely was not authorized to bind the employer as to filing claims for employees in compensation matters. Here there is no suggestion that different departments or personnel in Bayshore handled employment matters and compensation matters. The Champness case recognized the rule of apparent authority applied in Summit Timber by stating that the agent 'must have the authority to represent the employer in the...

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