Cabell Concrete Block Co. v. Yarborough
| Decision Date | 16 February 1949 |
| Docket Number | 84. |
| Parties | CABELL CONCRETE BLOCK CO. et al. v. YARBOROUGH. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Robert France, Judge.
Proceeding under the Workmen's Compensation Act by Kenneth Yarborough, claimant, opposed by the Cabell Concrete Block Company, employer, and the Fidelity & Casualty Company of New York, insurer. From a judgment affirming the Commission's award of compensation, the employer and insurer appeal.
Judgment reversed and case remanded for a new trial.
Hall Hammond and O. Bowie Duckett, both of Baltimore, for appellants.
Paul Berman, of Baltimore (Sigmund Levin and Theodore B. Berman both of Baltimore, on the brief), for appellee.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
This is a proceeding under the Workmen's Compensation Act, Code Supp.1947, art. 101, § 1 et seq., brought by Kenneth Yarborough, a laborer, age 45, to recover compensation for a disability which he sustained while employed by Cabell Concrete Block Company in its yard on Childs Street in Baltimore.
The accident occurred on July 14, 1947. About 7 a. m. claimant and another employee named William Ephrain were unloading bags of cement from a truck, known as a dinkey, and stacking them on piles. Just as they were swinging one of the bags toward the top of one of the piles, claimant's left foot gave way, and he fell heavily on the dinkey. His left side struck the battery, which generated the electric current for the operation of the dinkey, and his head struck the iron frame of the battery. Ephrain helped him up. About ten minutes later, while Ephrain was in the shed, several other workmen were attempting to assist claimant to walk, but he collapsed. When Ephrain came out of the shed and saw claimant sitting on the ground, he put him on his shoulder and carried him to his home several blocks away. When the manager of the company arrived at the plant several hours later, and was informed of the accident, he mad arrangements to have claimant taken to Mercy Hospital in an ambulance. Claimant remained in the hospital only a few hours, but he had been confined to his home ever since.
Dr Walter S. Taylor, claimant's physician, who examined him on July 22, filed a report with the State Industrial Accident Commission in which he described the disability as left hemiplegia. He testified before the Commission that claimant had described how he had fallen and struck his head, and from the history of the case and his examination he reached the conclusion that the blow on claimant's head caused his cerebral hemorrhage, and that the hemorrhage had caused the paralysis. On the contrary, employer's physician, Dr Daniel J. Passagno, who examined claimant on December 6, 1947, reached the conclusion that he had suffered a spontaneous hemorrhage, and that the hemorrhage, and not the fall, had caused the paralysis. He admitted on cross-examination, however, that he would change his opinion if he were certain that claimant's blood pressure was not high at the time of the accident. On February 17, 1948, Dr. Charles Bagley, Jr., a brain specialist, examined claimant at the request of the Commission, and found that he had high blood pressure on that day. He expressed the opinion that an elevation of blood pressure at the time of the accident, along with strenuous exertion and the blow to the head may have caused the paralysis.
Employer's insurer, Fidelity & Casualty Company of New York, contested liability on two issues:
(1) Whether the claimant met with an accidental injury arising out of and in the course of employment.
(2) Whether the disability was the result of an accidental injury arising out of and in the course of employment.
On February 28, 1948, the Commission found (1) that claimant sustained an accidental personal injury arising out of and in the course of his employment, and (2) that his permanent total disability was the result of the injury. The Commission thereupon awarded claimant compensation at the rate of $25 per week during the continuance of permanent total disability, not to exceed $7,500.
Employer and insurer appealed from the Commission's award to the Superior Court of Baltimore City. There the judge submitted the following issues to the jury:
(1) Did claimant sustain an accidental injury to his head arising out of and in the course of his employment?
(2) If the answer is 'Yes,' then is claimant permanently and totally disabled as a result of his accident?
The jury answered 'Yes' to both issues. The Court accordingly entered judgment affirming the Commission's award. From that judgment employer and insurer brought this appeal.
First. Appellants requested the trial judge to instruct the jury that their answer to the second issue should be 'No.' They contend that the judge erred in refusing to give that instruction. It is an established rule that the fact that an employee was suffering from a diseased or infirm condition does not necessarily bar him from a right to workmen's compensation in case of an accidental injury, but an award of compensation may be had in case of a disability proximately caused by an accidental injury, which arose out of and in the course of his employment, and which accelerated or aggravated an existing disease or infirmity. Dickson Construction & Repair Co. v. Beasley, 146 Md. 568, 126 A. 907; Standard Gas Equipment Corporation v. Baldwin, 152 Md. 321, 136 A. 644; Armour Fertilizer Works v. Thomas, 153 Md. 631, 139 A. 356.
In J. Norman Geipe, Inc., v. Collett, 172 Md. 165, 169, 170, 190 A. 836, 839, 109 A.L.R. 887, 890, where a truck driver suffered a cerebral hemorrhage on Monument Street in Baltimore, after he saw a man jump off a truck in front of him, and he made an effort to avoid striking the man, this Court held that paralysis resulting from the hemorrhage was an accidental injury arising out of his employment. In sustaining the judgment of the trial court allowing the claimant compensation for the paralytic stroke, Judge Parke said:
In the case before us claimant and his fellow employee were lifting a bag of cement that weighed 94 pounds, and were in the act of swinging it upon a pile of other bags. Claimant testified that he slipped, and after he struck the dinkey, his leg and side hurt him and he had a terrific headache. He also testified that he had never suffered any attacks prior to the accident. In view of claimant's positive testimony, supported by the testimony of his fellow employee and his physician, we hold that the trial judge was correct in refusing to instruct the jury that claimant's disability was not the result of the accidental injury.
Appellants urge that Dr. Taylor, claimant's physician, is merely a general practitioner of medicine, while Dr. Bagley, whose opinion was different, is a brain specialist. However, Dr Taylor is a graduate of the Medical School of the University of Pennsylvania, and has practiced medicine about 35 years. He was qualified by study and experience to express an opinion on the subject. When a case is tried before...
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Board of Education v. Spradlin
...de novo relitigation must first have been a factual issue that was actually decided by the Commission. In Cabell Concrete Block Co. v. Yarborough, 192 Md. 360, 369, 64 A.2d 292 (1949), the Court of Appeals was very emphatic in this As the Commission is the original fact-finding body, an iss......
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