Bethlehem Steel Co. v. Mayo

• Decision Date: 16 March 1935
• Docket Number: 42.
• Citation: 177 A. 910,168 Md. 410
• Parties: BETHLEHEM STEEL CO. v. MAYO.
• Court: Maryland Court of Appeals

177 A. 910

168 Md. 410

BETHLEHEM STEEL CO. v. MAYO.

No. 42.

Court of Appeals of Maryland

March 16, 1935

Appeal from Circuit Court, Baltimore County; C. Gus Grason, Judge.

Proceeding under the Workmen's Compensation Act by Ira H. Mayo employee, opposed by the Bethlehem Steel Company, employer. From a judgment reversing the order of the State Industrial Accident Commission and increasing award for employee's permanent partial disability, the employer appeals.

Judgment affirmed.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, and SHEHAN, JJ.

J de-Bruyn Kops, Jr., and Wm. L. Marbury, Jr., both of Baltimore (George Weems Williams and Boyd B. Graham, both of Baltimore, and Jenifer & Jenifer, of Towson, on the brief) for appellant.

Howard C. Price, of Baltimore (Lawrence E. Ensor, of Towson, on the brief), for appellee.

OFFUTT Judge.

Ira H Mayo, the appellee, was on August 29, 1933, awarded compensation by the State Industrial Accident Commission for a total temporary disability resulting from accidental injuries which he sustained on June 20, 1933, in the course of his employment by the Bethlehem Steel Company.

On January 5, 1934, Dr. F. E. Shaffer reported to the commission that the claimant had suffered a permanent partial disability to the extent of "50% loss of use of his left leg," and that the period of total disability existed up to January 2, 1934.

On January 17, 1934, claimant requested a hearing to determine the extent of his disability, and after a hearing allowed on that request, on February 10, 1934, the commission terminated the payments for total temporary disability directed by its previous order, and allowed compensation for a permanent partial disability occasioned by "50% loss of use of left leg." From that award the claimant appealed to the circuit court for Baltimore county.

Pending the appeal, the employer paid, and the claimant accepted, compensation at the rate provided in the order of February 17th, and on October 16, 1934, the employer moved to dismiss the appeal on the ground that by accepting such payments the claimant waived his right to appeal. That motion was overruled, and the parties submitted these issues:

"Employer's Issue.

Is the Claimant, Ira Mayo, permanently partially disabled in his left leg in excess of 50% loss of use?

Claimant's Issue.

As a result of a permanent partial disability sustained by Ira H. Mayo, what is the percentage of loss of use of the left leg of said Ira H. Mayo?"

The court granted the employer's issue, refused the claimant's issue, and framed and granted the following issue: "If the jury answers 'Yes' to the Employer's issue, then to what extent is the Claimant disabled."

The case was tried before the court and a jury upon those issues, and at the conclusion of the trial the jury returned a verdict answering "Yes" to the employer's issue, and "100%" to the court's issue. Upon that verdict this judgment was entered: "Judgment on Verdict made absolute, reversing the Order of the State Industrial Accident Commission dated February 10, 1934, and increasing the permanent partial disability in the Claimant's left leg from 50 per cent. to 100 per cent." This appeal is from that judgment.

The first question presented is whether the appeal to the circuit court for Baltimore county should have been dismissed.

The general rule is that one cannot at the same time accept the benefits accruing to him under a judgment, order, or decree, and attack its validity by appealing therefrom, unless the right to appeal under such circumstances is given by statute, 3 C.J. 679, Stewart v. McCaddin, 107 Md. 314, 68 A. 571, but that rule does not apply where the right to the benefit received is conceded by the opposite party, or where the appellant would be entitled thereto in any event, 3 C.J. 680, 682.

In this case the statute which grants the right of appeal, chapter 406 of the Acts of 1931, also provides that: "An appeal shall not be a stay." It was decided in Branch v. Indemnity Ins. Co., 156 Md. 482, 489, 144 A. 696, 698, that the Legislature was authorized to annex that qualification to the right of appeal, and in announcing that conclusion Judge Urner for this court said: "The right of the Legislature to provide that an appeal from a decision of the State Industrial Accident Commission shall not be a stay could not be denied, consistently with the principle upon which the general validity of the act has been adjudicated. Its design was to insure speedy, as well as certain, relief in proper cases within the scope of its application. That humanitarian policy would be seriously hampered if the weekly payments of compensation awarded by the commission could be suspended because of an appeal. In providing that an appeal should not be a stay, the statute was simply adopting a necessary expedient to accomplish one of the important purposes for which it was enacted."

It is consistent with the record and all the evidence in the case that the appellant concedes that the claimant is entitled to compensation for a permanent disability resulting from 50 per cent. loss of the use of his leg. If the judgment had been affirmed he would have been entitled to that, and if it had been reversed on his appeal he would, upon the undisputed facts shown by the transcript of record from the State Industrial Accident Commission, have been entitled to no less. The whole issue in the case was not whether he had lost less than 50 per cent. of the use of that leg, but whether he had lost more than 50 per cent. of the use thereof.

The payments made by the appellee pending the appeal were therefore payments which in any event it was bound to make, and it suffered no possible prejudice from their acceptance by the claimant. Construed in connection with the principle that the general rule that one cannot take the benefits under a judgment, order, or decree and at the same time attack its validity does not apply where the right to the benefits actually received is conceded by the opposite party, the language of the statute that an appeal shall not be a stay applies at least to that extent to cases where the employe appeals as to those in which the employer appeals. Any other conclusion would be wholly inconsistent with the legislative intent as declared in the Workmen's Compensation Act (Code Pub. Gen. Laws 1924, art. 101, as amended), as well as with the construction placed upon that part of it in Branch v. Indemnity Insurance Company, supra.

The motion to dismiss was therefore properly overruled.

The second question presented by the record is whether the court erred in granting this issue, "If the jury answers 'Yes' to the Employer's issue, then to what extent is the claimant disabled?" The employer's issue was: "Is the claimant, Ira Mayo, permanently partially disabled in his left leg in excess of 50% loss of use?" It is apparent from a comparison of those issues that while the employer's issue limited the inquiry to the effect of the injury on claimant's left leg, which was the only question before the commission, the court's issue was directed to a general disability, a question which was never in the case. But as no objection on that ground to the rulings on the issues was made in this court, that particular objection will not be considered. Rule 39, Court of Appeals of Maryland.

The third question in the case arises from the action of the court in granting the court's issue, and the claimant's first prayer. Together, the issue and the prayer permitted the jury to determine to what if any extent in excess of 50 per cent. the claimant had lost the use of his left leg. Appellant contends that the jury should have been permitted to decide only whether the loss of use exceeded 50 per cent., but that it should not have been allowed to determine how much it exceeded 50 per cent., while appellee asserts the converse of that proposition.

Under the statute, article 101, § 56, chapter 406, Acts 1931, the court upon appeal is directed to determine whether the commission has correctly "construed the law and facts," and upon the request of either party to submit to a jury "any question of fact" disclosed by the record. Since the commission is the original fact-finding body, those provisions apparently mean that an issue of fact must originate with the commission, and cannot be raised for the first time before the court on appeal, for the court in such a case is only authorized to modify or reverse the award of the commission upon a finding that it has erred in construing the law or the facts. Ibidem.

But by the express terms of the statute the court on appeal is directed to decide whether the commission has misconstrued the facts, and to submit any issue of fact to a jury. McCulloh & Co. v. Restivo, 152 Md. 60, 136 A. 54. Does that mean that the court and jury on appeal are...