Bethlehem-Sparrows Point Shipyard, Inc. v. Scherpenisse

• Decision Date: 13 December 1946
• Docket Number: 35.
• Citation: 50 A.2d 256,187 Md. 375
• Parties: BETHLEHEM-SPARROWS POINT SHIPYARD, Inc., v. SCHERPENISSE.
• Court: Maryland Court of Appeals

50 A.2d 256

187 Md. 375

BETHLEHEM-SPARROWS POINT SHIPYARD, Inc., v. SCHERPENISSE.

No. 35.

Court of Appeals of Maryland

December 13, 1946

Appeal from Superior Court of Baltimore City; Joseph Sherbow, Judge.

Proceeding under the Workmen's Compensation Act by Marie Scherpenisse, widow of Cornelius Scherpenisse, deceased claimant, to recover compensation for death of her husband opposed by Bethlehem-Sparrows Point Shipyard, Inc., employer and self-insurer. From a judgment in favor of claimant on appeal from a decision of the Industrial Accident Commission disallowing the claim, the employer appeals.

Affirmed.

James C. Morton, Jr., of Annapolis, and John G. Rouse, Jr., of Baltimore, for appellant.

Paul Berman and Sigmund Levin, of Baltimore (Bernard E. Stern and Theodore B. Berman, both of Baltimore, on the brief), for appellee.

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

DELAPLAINE Judge.

On January 20, 1945, Cornelius Scherpenisse, age 51, an employee of Bethlehem-Sparrows Point Shipyard, Inc., stepped upon a nail in getting out of a lifeboat at one of the shipyard piers at Sparrows Point, and sustained a large puncture wound in his left foot. He died in the Church Home and Hospital in Baltimore on March 9, 1945. Claim for workmen's compensation was made by Marie Scherpenisse, his widow, on the ground that his death was caused by typhus fever, and that the virus had entered his body through the wound. The State Industrial Accident Commission disallowed the claim but its decision was reversed in the Superior Court of Baltimore City. From the judgment in that court in favor of the claimant, the employer has appealed here.

The term 'accidental personal injury,' within the meaning of the Workmen's Compensation Act, embraces (1) accidental injury arising out of and in the course of employment, (2) such disease or infection as may naturally result therefrom, and (3) the specific occupational diseases enumerated in the Act. Code Supp.1943, art. 101, sec. 80(6). It was admitted in the case at bar that the employee's wound arose out of and in the course of his employment. The issue submitted to the jury was whether his death was the result of the injury. It appeared at the trial that the wound was cleansed and bandaged by the shipyard surgeon, and on the following day the employee, in spite of his bandaged foot, returned to his work as rigger. On January 26 he was treated for bronchitis by his physician, Dr. William C. Geyer; and when he went back to the shipyard on January 30 he presented his physician's certificate of illness. About noon, however, he had to quit on account of pain in his leg and an uncomfortable feeling in his head. After that he never worked again. Fever and headaches gripped him. On February 5, when Dr. Geyer was called again, he was suffering severe pain in his left leg, although the wound in his foot had healed. His physician gave him a sedative to alleviate the pain, and took specimens of blood to see whether there was malaria or some other infection, made a Wassermann test, and also had his sputum examined for miliary tuberculosis. But the tests were all negative. The patient was given a sulfa drug for a week, but he did not improve. At times his temperature was between 104 and 105. On February 20 he was taken to the hospital for further examination and diagnosis. After he entered the hospital, a rash appeared on his face and arms. It was then that Dr. Geyer diagnosed the case as typhus fever.

Dr. Warde B. Allan, a specialist in internal medicine, who saw the patient on March 8, testified before the State Industrial Accident Commission that in his opinion typhus fever was the cause of death. He said that, although typhus fever is not a common disease, he had seen three cases in one hospital within six months. He named its symptoms as aches and pains, loss of appetite, gradual weakness, temperature between 104 and 105, rash on body and limbs, and in severe cases delirium. He explained that the organism causing typhus fever has its habitat in fleas and rats, and that the human body may become infected by the bite of a flea or by excreta from infected fleas or rats carried into the body through a break in the skin. He knew of cases where the virus of typhus had infected the body by entering a puncture wound. When his testimony was read to the jury in the Superior Court, the employer objected to his expression of opinion that it was possible that there was a causal connection between the employee's wound and his death. As Dr. Allan had examined the patient shortly before his death, he was familiar with the case from personal observation. He also examined the hospital record and the autopsy report. He was qualified to express his opinion as an expert. It is an established rule that where an injury or disease is such as to require a person skilled in medicine to determine its cause, a medical expert may testify to his opinion thereof based upon his scientific deductions from given facts. Moreover, a medical expert is not barred from expressing an opinion merely because he is not willing to state it with absolute certainty. His opinion is admissible in evidence as to the cause which produced, or probably produced, or might have produced, a certain physical condition. As we said in Langenfelder v. Thompson, 179 Md. 502, 507, 20 A.2d 491, 136 A.L.R. 960, the opinion of an expert as to the probability, or even the possibility, of the cause of a certain condition may frequently be of aid to the jury, for when the facts tend to show that an accident was the cause of the condition, the assurance of an expert that the causal connection is scientifically possible may be helpful in determining what are the reasonable inferences to be drawn from the facts.

The employer objected to admission in evidence of that part of the hospital record which gave the history of the case particularly the statement, 'Patient cut left foot and developed an infection involving entire leg.' In 1927 a committee of experts appointed by the Commonwealth Fund of New York published a Model Act for Proof of Business Transactions. For many years some of the rules of evidence had been so unwiedly that many of the simpliest transactions, such as sale and delivery of merchandise, were often the most difficult to prove. Valid claims were often abandoned because of the fact that the withdrawal of necessary witnesses from the activities of business would cause expense out of proportion to the possible gain. It was finally realized that the difficulty would be lessened if records could be introduced in evidence upon proof that they were made in the usual course of business. In 1936 the Commissioners on Uniform State Laws recommended a Uniform Act on Business Records, which sought to improve on the Model Act by adding a requirement that the record must be testified to by some appropriate witness. In 1929 the Maryland Legislature adopted the Model Act, and in 1933 sought to strengthen it by authorizing the introduction of photostatic or photographic reproductions of records. The Maryland Act now provides: 'Any writing or record, or a photostatic or photographic reproduction thereof, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of said act, transaction, occurrence or event, if made in the regular course of any business, and if it was the regular course of such business to make such memorandum or record, or photostatic or photographic reproduction thereof at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.' Acts of 1929, ch. 517, Acts of 1933, ch. 179; Code 1939, art. 35, sec. 68. Under the broad language of this Act, we find no error in the admission in evidence of the hospital record in the...