Bethlehem-Sparrows Point Shipyard, Inc. v. Bishop

• Decision Date: 03 November 1947
• Docket Number: 4.
• Parties: BETHLEHEM-SPARROWS POINT SHIPYARD, Inc. v. BISHOP et al.
• Court: Maryland Court of Appeals

55 A.2d 507

189 Md. 147

BETHLEHEM-SPARROWS POINT SHIPYARD, Inc. v. BISHOP et al.

No. 4.

Court of Appeals of Maryland

November 3, 1947

Appeal from Superior Court of Baltimore City; Edwin T. Dickerson Judge.

Proceeding under the Workmen's Compensation Act by Adelaide Bishop widow, and Geraldine Ruth Bishop, infant daughter, claimants for the death of Jerome Bishop, deceased, as a result of occupational disease, opposed by Bethlehem-Sparrows Point Shipyard, Inc., employer, self-insurer. From a judgment affirming an award of compensation by the State Industrial Accident Commission, the employer appeals.

Judgment affirmed.

John G. Rouse, Jr., and James C. Morton, Jr., both of Baltimore (Ewing, Rouse & Morton, of Baltimore, on the brief), for appellant.

Everett L. Buckmaster and Robert F. Skutch, both of Baltimore (Weinberg and Green, of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

HENDERSON Judge.

This appeal is from a judgment of the Superior Court of Baltimore City affirming an order of the State Industrial Accident Commission awarding compensation to the claimants. Jerome Bishop died on July 23, 1942. On August 7, 1942, claim was filed on behalf of his widow and a dependent minor child, on the ground that death was the result of an occupational disease contracted while the decedent was employed as a pipe-fitter by the appellant. After a hearing before one of the Commissioners, the claim was referred to the Medical Board for Occupational Diseases for report. On November 21, 1944, the Medical Board found upon the record of the prior hearing that the decedent 'did not contract lead poisoning while in the employ' of the appellant. Upon petition to review this finding, the State Industrial Accident Commission remanded the case to the Medical Board, in order that the Board might 'conduct the investigation, hearing and report contemplated by the statute'. After further hearing, on March 21, 1945, the Board found that the decedent 'did not die as the result of lead intoxication'. Upon petition for review, the Commission, with two Commissioners sitting, on January 25, 1946, reversed the finding of the Medical Board, found that the decedent died 'as a result of occupational disease resulting from lead poisoning to which he was last injuriously exposed while in the employ of the appellant, and awarded compensation. The employer filed a motion for rehearing, which was heard by three Commissioners. On April 10, 1946, the motion was denied, one Commissioner dissenting. Appeals were entered from the award of January 25, 1946 and from the order of April 10, 1946. On motion, the Court dismissed the latter appeal. The employer did not pay the compensation awarded at that time, and claimants brought suit under the Speedy Judgment Act, Code Pub.Loc.Laws 1930, art. 75, § 312 et seq., as amended. The employer interposed a special plea under oath, contending that the award of January 25, 1946 was not final in that by the order of April 10, 1946, there was a correction made as to the date of decedent's death. The claimants then moved to dismiss the appeal from the award on the ground that the employer was estopped by having taken an inconsistent position in the suit under the Speedy Judgment Act. The Court overruled the claimants' motion, and, sitting without a jury, affirmed the award of January 25, 1946. From that judgment the employer appealed to this Court.

The appellees contend that the motion to dismiss should have been granted, but that in any event the award was properly affirmed. The appellant contends (1) that the Commission erred in reversing the finding of the Medical Board upon a medical issue, where there was evidence to support the Board's finding, and (2) that the Commission's award was improper because it was signed by only two Commissioners and contained no proper findings of fact.

We find no merit in the appellees' contention as to the motion to dismiss. The appellees rely upon the case of Kramer v. Globe Brewing Co., 175 Md. 461, 2 A.2d 634. In that case the corporate defendant pleaded to a common-law action for personal injuries, that the plaintiff was its employee, and that his remedy against it under the Workmen's Compensation Act was exclusive. The plaintiff thereupon dismissed his common-law action and filed a claim against the corporation under the Workmen's Compensation Act, where he was met with a contention that he was not its employee. This court held that it was error to permit the corporate defendant, after having availed itself of an affirmative defense in the prior suit, and thereby induced a change of position on the part of the plaintiff, to deny the facts asserted in its special plea. We think the Kramer case is readily distinguishable. In the instant case, there was no admission of fact, but merely a contention that, as a matter of law, suit under the Speedy Judgment Act should have been based on the corrected order of April 10, rather than the order of January 25. Because of a reasonable doubt upon this point, the employer had appealed from both orders. Moreover, there is no suggestion that the claimants suffered any detriment or were induced to change their position as a result of the plea. While the record does not disclose the outcome of the suit under the Speedy Judgment Act, the appellant states in its reply brief, and stated in argument without contradiction, that it has been and is now complying with the terms of the award, and as of September 19, 1947, had paid to the claimants the sum of $4,184.65 under the order now before this Court. Under the circumstances, we think the claim of estoppel is not well founded.

In order to determine whether the Commission properly reversed the finding of the Medical Board, it is necessary to state the evidence in some detail, although the facts are virtually undisputed. Bishop was first employed as a pipe-fitter at the Sparrows Point shipyard of the Bethlehem Steel Company in November 1936. At that time he was 26 years of age, in robust health, and weighed 156 pounds. He had previously worked as a truck-driver. He continued working as a pipe-fitter at the same plant when it was reorganized as Bethlehem-Sparrows Point Shipyard, Inc., in 1941. In April 1942, he transferred to the Bethlehem-Fairfield Shipyard, Inc., another subsidiary, where he worked as assistant foreman. During the entire period of his work at Sparrows Point, he worked in the engine rooms and holds of ships where he was constantly exposed to the fumes of burning white and red lead. In the last two years before his death he lost weight, his skin became yellow, he complained of constipation, loss of appetite and nausea, pains in the stomach and giddiness, a bad taste in his mouth, and nervousness. He was treated for gastro intestinal trouble. At the time of his death, at the age of 32, his weight was 140 pounds. The terminal cause of death, as stated in the Coroner's report, was coronary thrombosis due to arteriosclerosis. There was also findings that the decedent had an 'old stomach ulcer associated with considerable scar tissue', and that there was 'marked congestion' of the stomach, liver and kidneys.

Dr. Paul Clough, an experienced physician connected with the Johns Hopkins Hospital, testified as an expert. He stated that in his opinion the premature arteriosclerosis which caused the coronary thrombosis was 'probably the result of chronic lead poisoning'. He stated that a gastric ulcer would have no appreciable effect upon the heart, but that pains in the stomach were a common symptom of lead poisoning. He stated that arteriosclerosis was rare in a person of the decedent's age, and would indicate an extraneous cause. He admitted that medical opinion was not wholly in accord as to the relation between lead poisoning and arteriosclerosis, but stated that 'the consensus of opinion is that lead causes injury to the cells which are present in the walls of the blood vessels'.

Dr. Charles Wood, who examined Bishop's lungs after the autopsy, stated that he found a deposit which made him suspicious of lead poisoning. He testified that chronic lead poisoning could have caused the heart condition. Medical text books in support of this theory were also offered in evidence.

Dr. Robert L. Graham, who performed the autopsy, stated that he found no evidence of lead poisoning, but admitted that he did not make any laboratory or other tests for it, since he was only interested in the terminal cause of death. He stated that the vascular changes he observed were limited practically to the coronary artery. Assuming that some toxicant had been absorbed 'if it were injurious to one vessel it should produce it more or less uniformly in other vessels, at least other vessels of the same caliber.' He declined to express any opinion as to the causes of arteriosclerosis, or whether it could be caused by lead poisoning. He made it clear that he was testifying as a pathologist, not as an expert in that field.

The Medical Board declined to adopt the opinion expressed by Dr Clough, and said: 'Medical opinions, as many other opinions hallowed by long acceptance, die notoriously...