Congoleum Nairn, Inc. v. Brown

• Citation: 148 A. 220,158 Md. 285
• Decision Date: 14 January 1930
• Docket Number: 69.
• Parties: CONGOLEUM NAIRN, INC., ET AL. v. BROWN.
• Court: Court of Appeals of Maryland

148 A. 220

158 Md. 285

CONGOLEUM NAIRN, INC., ET AL. v. BROWN.

No. 69.

Court of Appeals of Maryland

January 14, 1930

Appeal from Circuit Court, Carroll County; F. Neal Parke and Wm Henry Forsythe, Jr., Judges.

Proceeding under the Workmen's Compensation Act by Charles Brown claimant, opposed by the Congoleum Nairn, Incorporated employer, and the Liberty Mutual Insurance Company, insurer. Judgment awarding compensation for permanent total disability on appeal from the State Industrial Accident Commission, and the employer and insurer appeal. Reversed, and a new trial awarded.

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

William D. Macmillan, of Baltimore, and Guy W. Steele, of Westminster (Harold Tschudi, of Baltimore, on the brief), for appellants.

Linwood L. Clark and Solomon B. Levin, both of Baltimore (Theodore F Brown, of Westminster, on the brief), for appellee.

BOND C.J.

Brown, the appellee, was awarded by the State Industrial Accident Commission compensation for permanent partial disability from the severance of the whole of the third and fourth fingers, and two-thirds of the second finger, of his right hand. And on appeal by him, the action of the Commission was reversed, and compensation was allowed for permanent total disability as a consequence of the combined effect of this last injury and another one sustained to his other hand four years earlier. The appeal of the employer and insurer to this court presents for review an exception to the allowance by the trial court of an issue framed by the claimant to be submitted to the jury, and an exception to rulings of the court on prayers for instructions; and there is also a motion in arrest of judgment on the ground of inconsistency between the issues and the verdict.

The claimant was a man 62 years of age. Thirty-eight or 40 years ago he had lost the lower part of one leg, below the knee joint, and he wore an artificial portion of leg in its place. In May, 1924, while working for the same employer, Congoleum Nairn, Inc., he lost the index finger and second finger from his left hand, and he received compensation for permanent partial disability resulting from that loss. His most recent accident was in June, 1928. And, as has been said, he was awarded by the Commission compensation for permanent partial disability resulting from it, and by the trial court, compensation for total disability. At the hearing in court, physicians testified that the right hand, last injured, was still useful for some pursuits, which they specified; and Brown, on the other hand, testified that the fingers remaining were stiff and of no practical use, and that, besides, in view of his maimed condition and his age together, further employment was practically unobtainable.

The objection to the contested issue submitted to the jury, and that to a first prayer of the claimant's which was granted, are the same. The issue, the claimant's eighth, was whether the injury to the right hand rendered him totally incapacitated from performing "such work as he was accustomed and qualified to perform, at the time of the accident." And on his first prayer the jury were instructed that they might find the permanent total disability referred to in the eighth issue if they found that previous to the last accident the claimant was able to do the regular work assigned to him, but after that accident "was totally and permanently incapacitated to do said work or any other work that he was accustomed and qualified at the time of the accident to perform." The objection is that total disability in the Compensation Act means incapacity to do further work of any kind, not only of the kind he was accustomed and qualified to perform at the time of the accident, as the issue and the prayer assumed. And we think the objection well taken. The statute, Code, article 101, § 36, does not contain in terms the addition or qualification to the total disability provided for. In respect to permanent partial disabilities other than those specified, the compensation is by the express terms to be measured by subsequent wage-earning capacity "in the same employment or otherwise"; and it seems unlikely that a different measure or only wage-earning capacity in the same employment, should be intended for total disability. If it should be, then ability which was merely reduced by the accident might be taken as totally lost, and a workman who still possessed a high degree of capacity might be entitled to compensation for total disability because no longer capable of performing the kind or grade of work he was previously capable of performing. Or, in this particular case, the claimant, although he may have been considered by the jury as able to perform the duties of some occupations as testified, was, under the instruction, to be compensated as totally disabled if the work for which he was previously qualified was of a higher grade or materially different in other respects. In the opinion of this court that was not the purpose of the compensation statute. Downey, Workmen's Compensation, 43; Schneider, Workmen's Compensation, 1046; Grammici v. Zinn, 219 N.Y. 322, 114 N.E. 397; Myers v. Louisiana Co., 140 La. 937, 74 So. 256; Connelly's Case, 122 Me. 289, 119 A. 664; Leitz v. Labadie Co., 211 Mich. 565, 179 N.W. 291. Error is therefore found in the trial court's rulings on this point.

The eighth issue having been granted, and evidence having been taken on it, the employer and insurer objected that the evidence was not legally sufficient to enable the jury to find the total disability supposed, and that therefore the issue must be answered, "No." The claim for a classification of total disability as a consequence of the loss of fingers in 1924 and in 1928, combined, is based in argument on the provision in the Code, art. 101, § 36, that "loss of use of both hands * * * shall, in the absence of conclusive proof to the contrary, constitute permanent total disability." And the...