Blake Const. Co. v. Wells

• Decision Date: 27 January 1967
• Docket Number: No. 37,37
• Citation: 245 Md. 282,225 A.2d 857
• Parties: BLAKE CONSTRUCTION COMPANY et al. v. Dorita WELLS.
• Court: Maryland Court of Appeals

Page 282

245 Md. 282

225 A.2d 857

BLAKE CONSTRUCTION COMPANY et al. v. Dorita WELLS.

No. 37.

Court of Appeals of Maryland.

Jan. 27, 1967.

H. Algire McFaul, Rockville (Simpson & Simpson, Vivian V. Simpson, Joseph B. Simpson, Jr. and Alfred H. Carter, Rockville, on the brief), for appellants.

Martin E. Gerel, Washington, D. C. (Leonard J. Ralston, Jr., Washington, D. C., on brief), for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS and FINAN, JJ.

McWILLIAMS, Judge.

Dorita Wells (appellee) is the widow of James Wells, the circumstances of whose tragic demise during the early hours of 15 December 1962 persuaded the Workmen's Compensation Commission to reject her claim for compensation. This is the appeal of the employer, Blake Construction Company (Blake), and its insurer, from the judgment of the trial judge (Pugh, J.) reversing the action of the Commission.

The Congress has provided for the Bureau of Standards a handsome complex of buildings at Gaithersburg, in Montgomery County. The construction of the foundation of the one called the Radiation Physics Building was assigned to Blake. On 14 December 1962, in an excavation 30 to 35 feet deep, Blake had poured the concrete for one of the four walls of a room in the subbasement. This wall was 16 feet high. To protect the concrete from predicted low temperatures Blake had the wall covered with tarpaulins, extending from the top of the wall to the ground, so as to form a sort of tent. Oil and propane heaters were then placed on both sides of the wall between the wall and the tarpaulins. The heaters were tended during the night by watchmen. Wells, who was assigned the 11:00 P.M. to 7:30 A.M. shift, was instructed to relieve Walter Tucker. Wells was to be relieved in the morning by Charles Brice.

Maintaining a watch on the heaters was necessary in order to keep the temperature around the concrete above 32 degrees. There was also the possibility that the flame on a propane burner might be extinguished thereby causing the tent to fill with a mixture of propane gas and air which might eventually be ignited or exploded by one of the other burners.

Although Wells had told Tucker he would be 'a little late' he did not show up until 3:00 A.M. Nevertheless Tucker remained on the job looking after the heaters until Wells arrived. After Wells checked the heaters he and Tucker came up out of the excavation and they walked towards Wells' car. Tucker saw a woman sitting in the car as he passed by. He said the car was parked in such a way that the tarpaulins on one side of the wall could be seen by one sitting in the front seat.

At about 6:45 A.M. Brice arrived. He saw Wells' car and noticed that the engine was running. He looked in and he 'thought * * * (Wells) was asleep and a lady was laying on his lap.' They were fully clothed. Neither responded when he tapped on the window. He opened the door and saw that they were dead. He thought at the time the woman 'was the madam.' He learned later that she was Ruth Diggs. He then checked the heaters and he said 'everything seemed to be in order.'

The trial judge, in his opinion, said 'the facts as presented to the court are undisputed.' He said also that only the Commission's interpretation of the law was under scrutiny since 'there is no dispute as to the facts.' The expression 'undisputed facts' appears at several other places in his opinion.

We do not agree that 'there is no dispute as to the facts.' Shiflet, Blake's superintendent, said there 'should have been nine or ten heaters' under the tarpaulins. Brice said that when he checked the heaters after discovering the bodies of Wells and Ruth Diggs that 'approximately eight to ten' heaters were in operation. On the other hand Tucker testified there were 'three (heaters there) that night.' At a second hearing, six months later, when asked how many heaters were in use he replied, 'Not but five, is all I had there.' Tucker said it was not possible to see a heater from Wells' car nor was it possible to see whether a gas tank 'needed changing from sitting in the car' but that it was possible to 'see the light' of the 'heater through the tarpaulin.' Shiflet said that while some light might be seen from the car it would not be possible to tell 'whether two or one had gone out.' Moreover, he pointed out, the heaters on the other side of the wall could not be seen 'because you couldn't look through the concrete form.'

Judge Pugh emphasizes the 'lack of any specific instructions to the employee as to where he was required to be.' Shiflet said it was his duty to 'stay with the heaters and see that none of them go out.' Brice said, 'We were told to stay with the heaters.' He explained that the watchmen 'would have to be down there (in the hole) to detect whether the heater went out or not, for the reason if the propane had gone out and gas escaped, you smell it and turn off the heaters to keep them from igniting.' It was an order, he said, that the watchman 'has to remain * * * underneath the tarpaulins in the hole * * * until relieved.' Tucker, on the other hand, testified he had never received any instruction 'where to sit or stand.'

The statement in the court's opinion that 'it cannot be inferred that the deceased deviated from his employment as he was physically present in his automobile, facing the heaters and performing his job of watchman, there being no express requirement that he be within reaching distance of the heaters every moment of his employment' overlooks the testimony of Shiflet and Brice to the contrary. Shiflet's statement that there were heaters 'on both sides of the wall' is uncontradicted. Moreover it reflects obvious common sense since it would be foolish to protect one side of the wall and let the other side freeze.

The decision of the Commission is, of course, prima facie correct and the burden of proof is upon the party attacking the same. Code, Art. 101, § 56(c). This means nothing more than that, if the mind of the trier of facts is in equal balance on the evidence in the record, the finding of the Commission should be affirmed. Greenwalt v. Brauns Bldg. Specialties Corp., 203 Md 313, 318, 100 A.2d 804 (1953). The case at bar was submitted to the trial judge sitting without a jury. Since the parties elected not to produce any additional evidence, all that was before the court was the transcript of the proceedings before the Commission. In Williams Constr. Co. v. Bohlen, 189 Md. 576, 580, 56 A.2d 694, 696 (1948) we held that:

'* * * where the Commission has considered evidence of essential facts, and has drawn one of two different permissible inferences, there may be imposed upon the party attacking the decision of the Commission merely a burden of persuasion, and not necessarily a burden of additional proof. He may rely upon identically the same evidence that was presented before the Commission. The provision of the Act placing the burden of proof upon the appellant means only that he must prove in the trial Court what he asserts. His burden is to convince the Court or the jury that the Commission decided incorrectly in interpreting the facts, or deducing the inference from the facts, or construing the law applicable to the facts.'

Blake, therefore, was entitled, at least, to a careful consideration by the trial judge of all of the evidence produced before the Commission. Blake was entitled to have the trial judge weigh that evidence, all of it, in the light of the prima facie correctness of the Commission's decision and the appellee's burnden of persuading him that that decision was incorrect. Blake also was entitled to have the trial judge search his mind to see if it inclined toward the appellee, toward Blake, or if it was in equal balance. And, it seems to us, Blake has a right to know that conclusion was reached by the trial judge in respect of any conflicts in the evidence. Appellee argued below, in response to Blake's motion to reconsider, that the facts 'specifically enumerated' by the trial judge 'were undisputed.' Even if this were altogether true, and we think it is not, such eclecticism is inappropriate to the decision making process of a court of law.

We shall not undertake the resolution of the conflicting evidence. That is the function of the trial court. We have said many times that we do not weigh and evaluate conflicting evidence to determine its comparative value. Talley v. Dept. of Correction, 230 Md. 22, 29, 185 A.2d 352 (1962).

Since the case will be remanded we shall make a...