Bethlehem Steel Co. v. de Mario, 116.

• Decision Date: 17 February 1933
• Docket Number: No. 116.,116.
• Citation: 164 A. 748
• Parties: BETHLEHEM STEEL CO. v. DE MARIO.
• Court: Maryland Court of Appeals

164 A. 748

BETHLEHEM STEEL CO.

v. DE MARIO.

No. 116.

Court of Appeals of Maryland.

Feb. 17, 1933.

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

Proceeding under the Workmen's Compensation Act by Antonio De Mario, claimant, opposed by tire Bethlehem Steel Company, employer. Prom a judgment reversing a decision of the State Industrial Accident Commission wherein claimant was denied compensation, employer appeals.

Reversed, and new trial awarded.

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

Boyd B. Graham and George Weems Williams, both of Baltimore (Marbury, Gosnell & Williams, of Baltimore, on the brief), for appellant.

George Z. Ashman and Harry J. Green, both of Baltimore (Weinberg & Sweeten, of Baltimore, on the brief), for appellee.

DIGGES, Judge.

This is an appeal from a judgment of the superior court of Baltimore city reversing the decision of the State Industrial Accident Commission wherein the claimant was denied compensation. The first exception which we are asked to consider is the overruling by the trial court of the defendant's motion to dismiss the claimant's appeal in that court. The facts in respect to the time and manner of taking that appeal are wholly analogous to those presented and passed upon in Monumental Printing Co. v. Edell (Md.) 164 A. 171, namely, that, while the notice of the appeal to the superior court was served on a member of the commission, and such service admitted within 30 days from the commission's finding, no suit was docketed or other paper filed in that court to indicate that the appeal had been taken. This question is controlled by the decision in the Edell Case, supra; and, for the reasons therein stated, the motion to dismiss was properly overruled.

The case was tried before a jury to whom two issues were presented; the first requested by the claimant, and the second by the defendant: (1) "Was the claimant disabled after March 15th, 1931, as the result of an accidental injury arising out of and in the course of his employment?" The answer of the jury to this issue was "No." (2) "Was the claimant, Antonio de Mario, permanently partially disabled as the result of an accidental injury on or about December 10, 1930, arising out of and in the course of his employment by the Bethlehem Steel Company?" The answer of the jury to this issue was "Yes." The defendant filed exceptions to the claimant's issue, which were overruled. The case was tried on the evidence contained in the record as made before the commission. At the close of the evidence the claimant offered two prayers, which were granted. The defendant offered six prayers; the first two, designated as A and B prayers, were refused, and the remainder granted. The defendant excepted to the rejection of its A and B prayers. The fourth exception was to the overruling of the defendant's motion for a new trial; and the fifth and final exception was to the overruling of the defendant's motion in arrest of judgment.

The defendant's A and B prayers directed an answer to issues 1 and 2, respectively, in favor of the defendant. The correctness of the court's ruling on defendant's A prayer is immaterial, because by that prayer the court was asked to instruct the jury that their answer to the first issue should be "No"; and, while this prayer was refused, the answer of the jury to the issue to which the prayer referred was "No," and therefore in accord with the request contained in the rejected A prayer.

The defendant's B prayer requested the court to instruct the jury "that there is no legally sufficient evidence in this case to show that the appellant Antonio De Mario was permanently partially disabled as a result of an accidental injury sustained by him on or about December 10th, 1930, arising out of and in the course of his employment with the Bethlehem Steel Company, and therefore the answer of the jury to the Bethlehem Steel Company's issue must be 'No.'" The effect of granting this prayer would have been to hold that there was no legally sufficient evidence in the ease upon which the jury might find that the claimant was permanently partially disabled as a result of the accident. The evidence offered on behalf of the claimant tends to establish facts which may be substantially thus stated: That the claimant had been employed by the defendant as a foreman in its plant for approximately fourteen months prior to December 10, 1930, the day of the accident; that on that day, while the claimant in the course of his employment was working on top of a "chute" at "No. 4 blast furnace," the chute gave way and he fell, striking the right side of his body, right shoulder, and right side of the face on iron and heavy steel; that upon prompt application by the claimant, together with the report of the defendant and its physician, the State Industrial Accident Commission by its decision and order of January 13, 1931, found that the claimant was temporarily totally incapacitated as a result of the injury, and awarded compensation at the rate of $18 per week during the continuance of his disability, beginning as of the 15th day of December, 1930. subject to the provisions of the Workmen's Compensation Law; that the payment of such compensation continued until March 3, 1931; that although the claimant returned to work on March 4th, he continued to complain of injury to his right shoulder and severe pain therein, especially when he attempted to make full use of his right arm: that these complaints were made to the defendant's physician, who continued the examination and treatment of the claimant, making X-ray of the affected arm and shoulder, "baking with a flashlight or electrical apparatus," and administering drugs "internally; that on November 11, 1931, the claimant was "furloughed or laid off" and was told by the superintendent of the defendant to again see its physician, which the claimant did, at which time another X-ray picture was made, and claimant was told by the physician: "Your arm does not hurt you, it might be something in there (pointing to head)." "After that I did not see Dr. Shaffer any more." That the pain and injury to his arm and shoulder continued to the day of the hearing; that shortly thereafter the claimant filed a petition with the commission requesting a reopening of the case and a hearing to determine whether or not there existed any permanent partial disability as a result of the accidental injury; that at such hearing, held January 7, 1932, Dr. Sarubin, whose qualifications were admitted, testified that he had examined the claimant in November and December, 1931, the first examination being shortly after claimant left the defendant's employ; that he made a complete examination, at which time the claimant gave him a history of the injury and was at that time complaining of pain in his right shoulder and thumb; that he examined him with special reference to ascertaining whether the claimant was "faking" or whether he was honest about his pain, and "found upon examination when I stripped him and moved his arm accidentally, when he was not even watching, he screamed with pain when the arm was...