Director of Finance for City of Baltimore v. Alford

• Citation: 311 A.2d 412,270 Md. 355
• Decision Date: 28 November 1973
• Docket Number: No. 73,73
• Parties: DIRECTOR OF FINANCE FOR the CITY OF BALTIMORE et al. v. Albert E. ALFORD.
• Court: Court of Appeals of Maryland

Page 355

270 Md. 355

311 A.2d 412

DIRECTOR OF FINANCE FOR the CITY OF BALTIMORE et al. v. Albert E. ALFORD.

No. 73.

Court of Appeals of Maryland.

Nov. 28, 1973.

Howard E. Wallin, Asst. City Sol., Baltimore (George L. Russell, Jr., City Sol. and Ambrose T. Hartman, Deputy City Sol., Baltimore, on the brief), for appellants.

Paul D. Bekman and William H. Engelman, Baltimore (Kaplan, Heyman, Engelman & Belgrad, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

McWILLIAMS, Judge.

Fearing civil disorders of one kind or another the Police Commissioner of Baltimore City, a day or two prior to 3 April 1969 (the first anniversary of the assassination of Dr. Martin Luther King), issued a memorandum placing the entire department on a five-day '10-10 Alert,' beginning at 12:01 a. m. on 3 April. During this period policemen, whether on leave or simply 'off duty,' were required 'to keep themselves available' to be called back 'on emergency status.' In the early evening of 3 April a number of men, including the appellee (Alford), were notified by telephone to report for duty as soon as possible.

Alford, a 15-year veteran, lived, at the time, with his mother in the Belair Road-Sinclair Lane area of the city. Between 7:00 and 7:30 p. m. on 3 April he put on his uniform and went to the house of his sister-in-law near Harundale in Anne Arundel County where, aware of the '10-10 Alert,' he told his mother he could be reached until it was time for him to leave for the Northeastern District Station. He was scheduled to report there for duty on the 11:30 p. m. to 7:00 a. m. shift. 'Sometime' after 9:00 p. m. he was notified by telephone to come in as soon as possible. Of the two routes available to him he chose the one that would take him through the Harbor Tunnel instead of the one that would take him over the Hanover Street bridge. At or about this time a tractor-trailer had capsized in the Harbor Tunnel. Alford was caught in the ensuing traffic jam. By about 10:40 p. m. he had reached the toll booths at the south end of the tunnel. While 'at a complete standstill' his car was struck in the rear and driven into the car ahead of him. He was taken to South Baltimore General Hospital. Since the accident, as a result of the injuries he sustained, he has been assigned to light clerical work.

In May 1970 he applied to the Board of Trustees of the Fire and Police Employees' Retirement System of the City of Baltimore (Board) for special disability retirement. ¹ The hearing begun 11 March 1971 was not concluded because the Board thought it advisable to obtain guidance from the City Solicitor, who is also the Board's 'legal advisor.' The hearing was resumed on 29 July 1971 by which time the Board had been advised by the City Solicitor that Alford ought not to be given special disability retirement benefits because his injuries did not arise 'out of and in the course of the actual performance of duty.' The Board (5 members present) chose to disregard the counsel of its 'legal advisor', and by a vote of 3 to 2 it decided in favor of Alford. The Board (7 members present), at the request of the City Solicitor, reconsidered its decision and, on 16 December 1971, by a vote of 4 to 3, held fast to its earlier decision. On 22 December the City Solicitor advised the appellant Benton that he Board's decision had 'no basis in law and that any payment made pursuant to it would accordingly be unlawful.' In effect Benton was directed not to pay.

In January 1972 Alford sought the issuance of the writ of mandamus to compel Benton to pay over the amounts awarded to him by the Board. Benton resisted. The case came on to be heard before Grady, J., in October 1972. In January 1973 Judge Grady ordered the issuance of the writ. In the opinion filed with the order he said:

'(I find) that Benton ha(d) an absolute duty to perform the ministerial function of paying the benefits awarded to Alford. On this ground alone . . . (Alford) is entitled to the relief he seeks.'

We see it somewhat differently. In Thomas v. Owens, 4 Md. 189 (1853), the Treasurer of the State refused to honor a warrant issued by the Comptroller for the sum of $1,111.11, which sum he (the Comptroller) claimed to be due him as salary for a certain period. Chief Judge LeGrand, speaking for the Court, said:

'When there is an appropriation, and a proper warrant drawn by the Comptroller and presented to the Treasurer, his duty is purely ministerial: all he has to do in such a case, is to count out the money; an act ministerial, and nothing else.' Id. at 230.

But Judge Le Grand went on to say:

'. . . (W)e are of opinion, that the Treasurer properly refused to pay this warrant, because it did not show on its face the particular law under which it was drawn. It professes to have been issued under the constitution and an act of Assembly, without designating what particular act. For these reasons, and because the Comptroller in his petiion claimed more than he was entitled to, we affirm the order of the circuit court refusing the mandamus.' Id. at 231.

It seems to us that Benton found himself in a position much like that of the Treasurer in 1853. He had before him the letter of the chief legal officer of Baltimore City tantamount, in the circumstances, to an order. Only at his peril could be close his eyes to it. He surely had the right, perhaps even the duty, to refuse payment and thereafter to cooperate with the City Solicitor in resisting Alford's action, thereby provoking an investigation of the legality of the action of the Board. E. g., California Highway Comm'n v. Riley, 192 Cal. 97, 218 P. 579 (1923); Weiner v. City of Boston, 342 Mass. 67, 172 N.E.2d 96 (1961); State v. Martin, 64 Wash.2d 511, 392 P.2d 435 (1964); State v. Hastings, 10 Wis. 525 (1860). It must not be supposed, however, that our holding in this regard goes any further than the resolution of the case before us or any furture case having virtually identical facts and circumstances.

We shall affirm the result reached by Judge Grady but for a reason he seems not to have considered. Alford argued both here and below that he comes within the special mission exception to the going and coming rule. Benton relies exclusively upon the going and coming rule.

The basic issue, of course, is whether Alford's incapacity is the result of an injury which arose 'out of and in the course of the actual performance of duty.' Well established, in respect of the application of Workmen's Compensation acts, is the general rule that if an employee is injured while going to work or returning therefrom his injury cannot be said to have arisen out of or in the course of his employment. The cases so holding can, by analogy, be used in the appraisal of claims made under § 34(e) and the parallel § 6(e). ² Salomon v. Springfield Hospital, 250 Md. 150, 242 A.2d 126 (1968); Pariser Bakery v. Koontz, 239 Md. 586, 212 A.2d 324 (1965); Police Comm'r v. King, 219 Md. 127, 148 A.2d 562 (1959); Rumple v. Henry H. Meyer Co., 208 Md. 350, 118 A.2d 486 (1955); Heaps v. Cobb, 185 Md. 372, 45 A.2d 73 (1945).

It seems odd that this case should come hard on the heels of the 'trilogy' written, for the Court, by Judge Singley a month or two ago: Board of Trustees of Employees' Retirement System of City of Baltimore v. Grandinetti, Md., 309 A.2d 764 (1973) (No. 10, September Term, 1973, filed October 10, 1973); Baker v. Board of Trustees of Employees' Retirement System of City of Baltimore, Md., 309 A.2d 768 (1973) (No. 12, September Term, 1973, filed October 10, 1973); Board of Trustees of Fire and Police Employees' Retirement System of City of Baltimore v. Rollins, Md., 309 A.2d 758 (1973) (No. 28, September Term, 1973, filed October 10, 1973). In Rollins Judge Singley discussed the ordinance applicable here, Art. 22, § 34(e), supra. In Grandinetti and Baker he discussed § 6(e), supra, which, it will be observed, is for all practical purposes a carbon copy of § 34(e). In Rollins Judge Singley made liberal use of what we said in Adams v. Board of Trustees, 215 Md. 188, 137 A.2d 151 (1957), where § 6(e) was the controlling ordinance. ³

An early recognition of the special mission exception will be found in Reisinger-Siehler Co. v. Perry, 165 Md. 191, 167 A. 51 (1933). There Perry had been employed to look after his employer's store from 6:00 a. m. to 6:00 p. m. In addition he was subject to call at any time. Upon returning home from a social call one night in June 1932 he learned that a policeman had called at his house and that he had left a message about the store. He went immediately to the store and found the lights on and the back door open. After investigating he turned out the lights, locked the doors and started for home. On the way he was struck by an automobile. The Commission ⁴ awarded Perry compensation. The trial court affirmed the award. Our predecessors affirmed the decision of the trial court. Judge Pattison, after reviewing the cases, said, for the majority of the Court (Bond, C. J., ahd Parke, J., dissenting):

'The claimant in this case was employed regularly at his employer's store from 6 o'clock in the morning until 6 o'clock in the evening, to care for the building, as stated in the evidence. When his day's work was over, he was, of course, permitted to return to his home, but he was thereafter subject to call at any time to go to the store to care for any unusual conditions that might be found to exist there. It may be said that he had no time which he could absolutely call his own, for when he was wanted he was expected to be in a position where he could be reached and ready to go in the performance of his duty.

'The record does not disclose any express agreement between him and his employer relative to the duties that he was to perform, or the remuneration he was to receive. Under his regular employment, his duties were to remain at the store during...