Bethlehem Steel Co. v. Munday

• Decision Date: 12 February 1957
• Docket Number: No. 69,69
• Citation: 212 Md. 214,129 A.2d 162
• Parties: BETHLEHEM STEEL COMPANY v. Ernest F. MUNDAY.
• Court: Maryland Court of Appeals

Page 214

212 Md. 214

129 A.2d 162

BETHLEHEM STEEL COMPANY v. Ernest F. MUNDAY.

No. 69.

Court of Appeals of Maryland.

Feb. 12, 1957.

Jesse Slingluff, Jr., Baltimore (Kenneth C. Proctor, Townson, on the brief), for appellant.

J. Francis Pohlhaus, Washington, D. C., (Bernard J. Russell, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

PRESCOTT, Judge.

This is an appeal by the Bethlehem Steel Company, employer and self-insurer in a workmen's compensation case in which an award for permanent total disability benefits for the employee made by the State Industrial Accident Commission was sustained on appeal by a judgment of the Circuit Court for Baltimore County.

On appeal, the case was submitted to a jury on issues which, among others, required findings as to the causel relation between the accident and the claimant's disability and, the effect, if any, of a pre-existing disease on the claimant's disability. The jury, in answering the issues, found that the accident was the cause of the disability and the pre-existing disease did not contribute to it, thus affirming the award of the Commission.

On May 12, 1951, at about 12:45 P.M., the appellee, Ernest F. Munday, aged 50, who was an employee of the Bethlehem Steel Company, appellant, and who was working in the capacity of a millwright, sustained an accident. He had gone to the top of a machine in order to better perform a certain task, and in descending his foot slipped and he fell, striking his chest.

There was evidence to the effect that he continued working for about forty-five minutes and then sat down. At this time, his fellow worker said: he did not 'seem to act like he should. * * * He seemed like an ill man.' Soon thereafter, an ambulance was summoned which took him to the appellant's dispensary. At about 3:25 P.M., appellee left for home being driven by a Mr. Vogel. Vogel testified Munday appeared pale and said he was feeling bad; that on the way home, he complained about his chest hurting him badly; that he couldn't breathe; that he appeared worried; and, when he got out of the car he wobbled.

Appellee's wife described his actions from then until sometime between 11:00 and 12:00 P.M. when his condition led her to call the family physician, who arrived about midnight. The doctor said he was pale with grayish and moist skin; that he was breathing laboriously; that his pulse was very slow and thready; that his blood pressure was around 130/80; that he had no reflexes, which indicated he was in a state of complete shock; and the doctor thought appellee had had a cerebral accident. The doctor returned the next day and diagnosed his illness as a cerebral accident and ordered him to the Maryland General Hospital where he remained for seven weeks, when he was discharged. Appellee never recovered from a paralysis of the right side of his face, his right arm and right leg. It was undisputed that his disability was a total and permanent one. The doctor further testified he had treated appellee, some three years before, for high blood pressure, and as a result of this treatment the pressure had declined. Before the Commission, the appellant and appellee presented the testimony of some eleven witnesses, of whom five were doctors. In the doctors' testimony there was considerable mention of high blood pressure and hardening of the arteries. In addition to the oral evidence, there were offered and accepted into evidence the Bethlehem Steel Company Dispensary Record, the Maryland General Hospital record, and a Dr. Cotter's report. The case, in the court below, was tried on the record made before the Commission, with the additional fact stipulated that prior to the accident, the claimant had lost no time from work for a period of two years because of any physical disablement. By agreement of counsel, the entire record made before the Commission was offered into evidence by the employer with the statement that each side reserved the right to object to the admissibility of any testimony that had been improperly admitted.

The first error claimed by appellant is that the court below should have permitted its counsel to read to the jury the testimony, taken before the Commission, of Dr. Scherlis, one of its experts. Dr. Scherlis was a specialist in cardiology. He had not examined appellee, nor had he heard the testimony of the previous witnesses. It is elementary that a qualified physician comes within that class of witnesses whose testimony is sought for the special skill possessed in drawing inferences and conclusions from data either observed by the witness or furnished by others; but, in deducing these inferences and interpretations, the witness must always predicate them on certain premises of fact. Quimby v. Greenhawk, 166 Md. 335, 339, 171 A. 59, 61.

We have carefully examined the two hypothetical questions propounded to Dr. Scherlis. With regard to the first, we think that the basis upon which he rested his opinion was not made sufficiently definite, Quimby v. Greenhawk, supra; Mangione v. Snead, 173 Md. 33, 49, 195 A. 329; Wigmore on Evidence, 3rd Ed. par. 681(d); and, as to the second question, it is impossible for us to determine what facts the doctor took into account, or was asked to take into account, in formulating his opinion. Ibid. par. 681(e)(f); Thompson v. Standard Wholesale Phosphate & Acid Works, 178 Md. 305, 320, 13 A.2d 328. We, therefore, hold the trial court was within the proper exercise of its discretion in excluding this testimony. Quimby v. Greenhawk, supra; Wigmore on Evidence, 3rd Ed. par. 681. The questions are easily distinguishable from the one permitted in Ihrie v. Anthony, 205 Md. 296, 309, 107 A.2d 104.

We have examined the few remaining questions and answers of this witness, and find no reversible error in the Court's ruling in not permitting them to be read to the jury.

In making this ruling, we have given due regard to the increased leeway in the admissibility of evidence extended to the Commission by Sec. 10 of Art. 101 of the Code 1951. We recognize the Courts must adjust themselves to the additional latitude stated in the statute; but, we reaffirm this Court's ruling in Standard Oil Co. of New Jersey v. Mealey, 147 Md. 249, 254, 127 A. 850, that this adaptation must, insofar as possible, avoid the abandonment of necessary cautions and safeguards.

The only other ruling of the Court below that is attacked by the appellant is one relating to the charge given to the jury at the time of the trial. Appellant contends it was error to allow the jury to decide that Sec. 35(7) of the Workmen's Compensation Act (the apportionment section of said Act) did not apply if a pre-existing disease were precipitated into permanent total disability, unless the pre-existing disease had disabled the claimant from working prior to the accidental injury.

The Court had in its charge included the following:

'* * * it seems to me that the employer's contention is based on the testimony that this blow * * * lighted up the pre-existing condition, and...