Coca-Cola Bottling Works v. Lilly

• Decision Date: 13 January 1928
• Docket Number: 21.
• Parties: COCA-COLA BOTTLING WORKS ET AL. v. LILLY.
• Court: Maryland Court of Appeals

140 A. 215

154 Md. 239

COCA-COLA BOTTLING WORKS ET AL. v. LILLY.

No. 21.

Court of Appeals of Maryland

January 13, 1928

Appeal from Circuit Court, Harford County; Walter W. Preston, Judge.

"To be officially reported."

Proceeding under the Workmen's Compensation Law by Chester Lilly employee, opposed by the Coca-Cola Bottling Works, employer and the Casualty Reciprocal Exchange, insurer. From an order of the Industrial Accident Commission awarding compensation the employer and the insurer appealed to the circuit court. From a judgment there rendered affirming the award with an increase in amount, the employer and the insurer again appeal. Affirmed.

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

E. Allan Sauerwein, Jr., of Baltimore (Sauerwein & Lindsay, George W. Lindsay, and Paul F. Due, all of Baltimore, and A. Freeborn Brown, of Bel Air, on the brief), for appellants.

John S. Young, of Bel Air, for appellee.

PATTISON J.

The appellee, Chester Lilly, an unmarried man, 23 years of age, employed by the Coca-Cola Bottling Company as chauffeur, while driving a truck on the public roads of Harford county, on the 19th day of September, 1925, collided with the back of a wagon. As a result of this collision, he was thrown against the steering wheel, causing contusion of the abdomen and left testicle.

The State Industrial Accident Commission, upon application of the injured man for compensation, and after hearing, on the 3d day of November, 1925, held that he was temporarily totally disabled as a result of such injury, and the commission ordered that compensation at the rate of $16.67 per week, payable weekly, be paid to Lilly by the Coca-Cola Bottling Company, the employer, and the Casualty Reciprocal Exchange, the insurer, the appellants, during the continuancy of his disability subject to the provisions of the Workmen's Compensation Law (Code Pub. Gen. Laws 1924, art. 101), the compensation to begin as of the 25th day of September, 1925.

Afterwards, on the 29th day of December, 1926, upon application of the appellants, the employer and insurer, another hearing was had before the Industrial Accident Commission, to determine the nature and extent of the appellee's disability. At this hearing, the commission found that the claimant had sustained a permanent partial disability, in addition to his temporary total disability, and thereupon it rescinded its order of November 3, 1925, and, in lieu thereof, ordered the employer and insurer to pay unto the claimant, Chester Lilly, "compensation at the rate of $16.67 per week, payable weekly from September 25, 1925, to October 31, 1926, inclusive, for temporary total disability, and, in addition thereto, compensation at the rate of $16.67, per week, payable weekly for the period of 50 weeks for permanent partial disability, payments of said last-named compensation to begin as of November 1, 1926, subject to a credit for such amount as may have been paid on account of the previous order passed in this case, and subject to a credit for wages earned during temporary total disability."

The appellants appealed from this order to the circuit court for Harford county. The case was heard by that court, without issues, and the trial resulted in the court affirming the award of the Industrial Accident Commission, with the exception that it extended the time from 50 to 100 weeks for which the claimant was to be paid $16.67 weekly for permanent partial disability.

During the progress of the trial, seven exceptions were taken to the action of the court in its rulings upon evidence; and, at the conclusion of the evidence, the claimant asked for one prayer, which was granted. The employer and insurer asked for five prayers, all of which were rejected.

The court, by appellants' first prayer, was asked to rule as a matter of law, that the claimant was not entitled, upon the facts of the case, to recover compensation for permanent partial disability. This was asked upon the assumption that there was no legally sufficient evidence tending to show that the claimant suffered such disability as the result of the injury. Whether he suffered permanent partial disability was the question before the Industrial Accident Commission at its hearing on the 29th day of December, 1926, and it reached the conclusion, upon the evidence offered, that the claimant had suffered a permanent partial disability, and was entitled to compensation for such disability.

The evidence before the commission showed that after the accident, on September 19, 1925, the claimant did not, because of the injury resulting from the accident, return to his work until the 6th day of October, of the same year, and then, finding that he was not able to do the work on account of the injury received, he discontinued it.

While in this condition, the claimant, at the suggestion of the employer and insurer, was, in June, 1926, examined by Drs. Hopkins and Steiner. In describing his condition, Dr. Hopkins said:

"He had great pain, due to atrophy of the testicle and swelling of the cord, that seemed to be inflamed. Only the removal of the testicle and part of the cord would give him relief, which was done in June, 1926."

In October following, the claimant was again examined by Drs. Hopkins, Steiner, and Lewis. Dr. Hopkins said that at that time he was able to return to his work. Whereupon he was asked by the claimant:

"When you examined me last with Dr. Steiner and Lewis, I was telling you about these pains I had, these short shooting pains? A. Yes. Q. You said it was from being operated on? A. Just the nerves. Q. And I told you right under the heart I had a catch in there, and I also mentioned to you about that. Do you think that a man is as good after the removal of a testicle?"

Without waiting for a reply, the chairman of the commission asked:

"Would it affect his ability to earn a livelihood industrially? A. I don't think so. Authorities differ on that question."

Dr. Steiner, who was with Dr. Hopkins at the operation, and who saw the claimant again in October following, was asked:

"Are you able to say now, doctor, whether or not Mr. Lilly is in any way incapacitated from performing the services that he was engaged in at the time of the accident, driving a truck?"

He replied saying:

"My impression is that he is able, that he can do work now as well as before the accident."

He was then asked whether the claimant was, in October, 1925, able to return to his work as formerly before the accident. He said:

"Perhaps not at that time; he was still sore and tender there. Perhaps lifting and doing manual labor would have given him some discomfort. But I think that has all passed away."

He was then asked whether or not the loss of the testicle would affect or impair his ability to perform physical or manual work, to which he replied:

"Physically he would probably be able to do the same character of labor. Sometimes it affects the nervous system."

The claimant, when placed upon the stand, testified that he was not then and had not been able since the accident to return to the work he was doing, and, when asked why he was not able to go back to work, he said:

"Well, its my nerves, my condition, that I am almost afraid to see the car. I can get in a car and drive a car slow, but ride with any one else, I cannot do it. I am afraid they are going to hit something. If I could return to work I would. I was on a commission, $25 a week and commission, and I could make forty and fifty dollars a week, and I would not stay off for $16.67."

The three witnesses, Drs. Hopkins and Steiner and the claimant were the only witnesses produced before the commission, and it will be seen from the evidence introduced, that the question before the commission was whether the claimant, because of the injury received by him, was incapacitated from performing the services ...