Boteler v. Gardiner-Buick Co.

• Decision Date: 05 April 1933
• Docket Number: 5.
• Citation: 165 A. 611,164 Md. 478
• Parties: BOTELER v. GARDINER-BUICK CO. ET AL.
• Court: Maryland Court of Appeals

165 A. 611

164 Md. 478

BOTELER v. GARDINER-BUICK CO. ET AL.

No. 5.

Court of Appeals of Maryland

April 5, 1933

Appeal from Superior Court of Baltimore City; Eugene O'Dunne Judge.

Proceedings under the Workmen's Compensation Act by G. Alan Boteler opposed by the Gardiner-Buick Company, employer, and United States Fidelity & Guaranty Company, insurer. The State Industrial Accident Commission allowed compensation, but this determination was reversed on appeal to the superior court of Baltimore city, and Agnes V. Boteler, claimant's administratrix, having been substituted on claimant's death, appeals.

Judgment of superior court reversed, and award of State Industrial Accident Commission affirmed and entered to use of administratrix.

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

James K. Cullen, of Baltimore (John I. Rowe, of Baltimore, on the brief), for appellant.

Robert D. Bartlett, of Baltimore (Bartlett, Poe & Claggett, of Baltimore, on the brief), for appellees.

PARKE Judge.

G. Alan Boteler was employed by the Gardiner-Buick Company as a salesman of automobiles. His duties were those incident to that position, and embraced visiting and receiving and serving prospective buyers, exhibiting the types of automobiles, and showing and demonstrating their parts quality, and operative efficiency. In the performance of these duties, his working hours were divided between the time spent away from his employer's place of business and within its salesrooms in the proportion of 70 per centum to 30 per centum of his time. The employer had set apart a room on a floor for the display of new automobiles, and a room on same floor for the exhibition of used automobiles. The rooms were separated by a partition which had a doorway that gave entrance to either room. The salesmen, while engaged in their daily inside duties, worked alternatively the allotted part of one day in one of these showrooms and the next day in the other; and every salesman was obliged to observe and enforce the rule that, during the period of his indoor service, he must remain within the room where he was then assigned.

At the time of the accident, Boteler was on duty as a salesman in the showroom of new automobiles, and another salesman from the other department entered the room, and a salesman, who was working with Boteler, called his attention to this infraction of the rules of the employer, and Boteler, in an effort to enforce the regulation, approached the intruder, who was about fifteen or twenty feet away, with the purpose of reminding him of the rule, and of telling him to go back to his place of duty. Without speaking, Boteler put out his hand and touched the shoulder of the offender, who, being surprised, turned quickly and, in turning, struck Boteler's shoulder, threw him off his balance and caused him, in falling, to grab the intruder and they both fell together to the floor. Boteler sustained injuries and later died. The State Industrial Accident Commission allowed compensation, but, under the instruction of the court, this determination was reversed on appeal to the superior court of Baltimore city.

There is no question of the dead employee having received any compensation or damages under the laws of any other state, so the immediate problem is whether or not the injured employee was, at the time of the happening of the accident described, within these terms of paragraph 43 of section 32 of article 101 of the Code, title, "Workmen's Compensation (as amended by Laws 1929, c. 331)," which provide compensation for: "All salesmen including sales managers employed to solicit orders from customers outside of the establishment for which they are employed, who are citizens or residents of this State, employed by a person, firm or corporation having a place of business within this State, whether the injury for which compensation is asked was sustained within this State or elsewhere."

The employee Boteler's injury arose out of his employment, and was sustained in its course. He was a resident of Maryland, and a salesman whose employer's place of business was within the state; and he was employed to solicit orders from customers outside of the establishment for which he was employed. So Boteler was within the terms of the statute, unless they be construed to mean that they do not apply, because the statute only contemplates those salesmen who are employed to solicit orders outside of the employer's establishment and are so engaged at the time of the happening of their injury. To give this meaning to the language of the paragraph under consideration a strict construction must be adopted, which would be a contravention of the mandate of the law to the effect that it should be interpreted and construed to effectuate its general purpose. Code, art. 101, § 63.

If injury result from the nature, conditions, obligations, or incidents of an employment designated as hazardous by law, the employee thus sustaining the injury is within its scope. So, should the requisite facts exist to establish a causal connection between the employment and the circumstances of the injury, the injury may be compensable although the employee may not, at the time of the accident, be actually engaged in the performance of the service whose nature, process, or discharge is the basis of its inclusion in the category of a hazardous occupation, but be exposed to the other risks that are necessarily incidental to the doing of the employer's work. Illustrations of this statement are found in those cases where, by reason of definitive circumstances, compensation has been awarded when the accident occurred while the servant, in going to or returning from work, was making use of transportation furnished by the master (a); or during a temporary break in the continuity of the hours of daily labor (b); or in going back to the premises after cessation of work (c); or by becoming the subject of the tortious act of a third party (d). Schneider's Workmen's Compensation Law (2d Ed.) section 49. (a) Baltimore Car Foundry Co. v. Ruzicka, 132 Md. 491, 496, 104 A. 167, 4 A. L. R. 113; Beasman & Co. v. Butler, 133 Md. 382, 386, 105 A. 409; Harrison v. Central Constr. Co., 135 Md. 170, 176-180, 108 A. 874; Central Constr. Co. v. Harrison, 137 Md. 256, 262, 112 A. 627. (b) Southern Can Co. v. Sachs, 149 Md. 562, 131 A. 760, 43 A. L. R. 417. (c) Owners' Realty Co. v. Bailey, 153 Md. 274, 284-287, 138 A. 235. See Miller v. United Rwys., etc., Co., 161 Md. 404, 157 A. 292. (d) Todd v. Easton Furniture Mfg. Co., 147

Md. 352, 354-358, 128 A. 42.

In other words, it is not necessary that there should exist a direct, active, or physical connection between the act causing the accident and the employment, but it is sufficient if the accident, without having for its cause the serious and willful misconduct of the servant, arises directly out of circumstances which the servant had to encounter because of his special exposure to risks that, although external, were incidental to his employment. Upton v. Great Central Railway (1924) A. C. 302, 306, 308; In re Larsen v. Paine Drug Co., 218 N.Y. 252, 112 N.E. 725; Code, art. 101, § 32.

These general principles found particular application in the case of the Weston-Dodson Company, Inc., v. Carl, 156 Md 535, 144 A. 708, which involved the consideration of paragraph 43 of section 32 of the Workmen's Compensation Act. In that appeal the employer was a foreign corporation which was engaged in the mining and shipment of coal, and the employee was its salesman throughout Maryland, Virginia, and the District of Columbia. The salesman had an office which he had opened in his home in the name of his employer, with his daughter as the secretary in charge. The salesman and daughter were paid their salaries by the employer, and the salesman traveled throughout the...