Gold Dust Corp. v. Zabawa

• Decision Date: 04 December 1930
• Docket Number: 38.
• Citation: 152 A. 500,159 Md. 664
• Parties: GOLD DUST CORPORATION ET AL. v. ZABAWA.
• Court: Maryland Court of Appeals

152 A. 500

159 Md. 664

GOLD DUST CORPORATION ET AL. v. ZABAWA.

No. 38.

Court of Appeals of Maryland

December 4, 1930

Appeal from Superior Court of Baltimore City; Samuel K. Dennis Judge.

Proceeding under the Workmen's Compensation Act by Louis Zabawa claimant, opposed by the Gold Dust Corporation, employer, and the Liberty Mutual Insurance Company, insurer. From a judgment of the superior court reversing an order of the Industrial Accident Commission which denied a petition to reopen the case after an award had been refused, the employer and insurer appeal.

Reversed and remanded.

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

William D. Macmillan, of Baltimore (Harold Tschudi and Semmes, Bowen & Semmes, all of Baltimore, on the brief), for appellants.

Edwin T. Dickerson and Lester L. Barrett, both of Baltimore, for appellee.

BOND C.J.

In this case, one of a claim under the Workmen's Compensation Act, Code, article 101, two questions are presented. When a claim for compensation has been disallowed by an order of the State Industrial Accident Commission, on the ground that the workman did not sustain an accidental injury arising out of and in the course of his employment, and no appeal has been taken by the workman from that order and no notice of appeal given by him, within the period of thirty days limited in section 56 concerning appeals, can he then upon an application to the Commission for a reopening of the question, and a refusal of his application, prosecute an appeal within thirty days from that refusal? And a second question is whether, if the appeal is then permitted, the trial court could properly submit to a jury, as a question of fact determinable by a jury under the statute, an issue whether the State Industrial Accident Commission "was justified in its refusal to grant the petition of the claimant, Louis Zabawa, to reopen his claim and to allow him such benefits as he may have been entitled to receive under the facts of this case?"

Zabawa, employed by a manufacturer of soap, claimed that he had been injured while at work in an effort to lift or push a truck or car loaded with soap; and the fact of injury was disputed.

The first order of the commission passed after a hearing at which the claimant failed to appear, on May 31, 1928, disallowed the claim. The claimant then filed a petition to reopen the case, explaining his failure to appear at the hearing; and, after a reopening and rehearing, the commission, on July 11, 1928, rescinded its earlier order, and passed a new order, disallowing the claim on the ground that the claimant did not sustain an accidental injury arising out of and in the course of his employment. No appeal was taken, and, of course, no notice of appeal was served on any member of the commission. On September 26, 1928, a petition for renewal of the hearing in July was filed on behalf of the claimant; and a hearing was held on the petition, testimony was taken from four witnesses, and on November 27, 1928, the commission by its order denied the petition to reopen the case. And from this order of November 27, 1928, the appeal was taken to the superior court of Baltimore city. The employer and insurer moved in that court that the appeal be dismissed, but the motion was overruled.

A jury was sworn to have submitted to them, as provided in section 56, "any question of fact involved in such case," and the court submitted to them the issue drawn as previously stated. The jury answered "No" to that issue, that is, that the commission was not justified in its refusal to reopen the case; and on that answer the commission's decision of November 27, 1928, was reversed. The present appeal by the employer and insurer is from that judgment entered in the trial court.

The provisions concerning the time for appeals to courts of law, Code Art. 101, § 56, are that any employee feeling aggrieved by any decision of the commission affecting his interests under this article may have the same reviewed by a proceeding in the nature of an appeal, and that "no such appeal shall be entertained unless notice of appeal shall have been served personally upon some member of the Commission within thirty days following the rendition of the decision appealed from." And, as this court observed of that limitation of time, in Holland Mfg. Co. v. Thomas, 136 Md. 77, 110 A. 209, "This language is positive and mandatory, and we have no power to disregard it. It was evidently intended to secure expedition in the review of the decisions of the commission, and to forbid the hearing of such appeals unless taken within the time limited." The refusal to reopen was a decision, of course, but it was only a decision not to interfere with a previous decision settling the merits of the claim. And it is regularly considered that a decision declining to interfere with a previous decision is not one intended to be included under a general statutory allowance of appeal from any decision. By section 30 of article 5 of the Code an appeal is allowed from any final order in equity in the nature of a final decree; nevertheless it is understood that from a final order merely refusing to reopen a previous order or decree no appeal is permitted. Jacobs v. Bealmear, 41 Md. 487; Zimmer v. Miller, 64 Md. 296, 1 A. 858; Crane v. Judik,

86 Md. 63, 38 A. 129, 131. "There is a perceptible analogy between an...