Harris v. City of Baltimore

• Decision Date: 10 June 1926
• Docket Number: 15.
• Parties: HARRIS v. MAYOR AND CITY COUNCIL OF BALTIMORE ET AL.
• Court: Maryland Court of Appeals

133 A. 888

151 Md. 11

HARRIS v. MAYOR AND CITY COUNCIL OF BALTIMORE ET AL.

No. 15.

Court of Appeals of Maryland

June 10, 1926

Appeal from Superior Court of Baltimore City; Joseph N. Ulman Judge.

Proceeding under the Workmen's Compensation Act by Amelia M. Harris for the death of her husband, John E. Harris, claimant opposed by the Mayor and the City Council of Baltimore and another, employers. From a judgment for the employers in the superior court on appeal from the Industrial Accident Commission, claimant appeals. Affirmed.

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

Philander B. Briscoe and Shirley Carter, both of Baltimore (Briscoe & Jones, of Baltimore, on the brief), for appellant.

Charles C. Wallace, City Sol., of Baltimore, for appellees.

OFFUTT J.

John E Harris, aged 73 years, was on June 29, 1925, employed by the park board of Baltimore City as a park policeman under the authority conferred by sections 97 and 98 of the Revised Edition of 1915 of the Baltimore City Charter, which read as follows:

"97. The said board of park commissioners shall have full power to employ and compensate all persons whom, in its judgment, it may deem proper, in maintaining and supporting such parks, etc. * * *

98. The night watchmen employed by the board of park commissioners shall have, while on duty, the same power that police in said city have as conservators of the peace."

While on duty, clothed in the uniform of a park policeman, and in the act of crossing a road in Druid Hill Park, he was on that day struck by an automobile, and so badly injured that he died on the 3d of July following.

On the 10th of July Amelia M. Harris, his widow, filed with the Industrial Accident Commission a claim for compensation against the mayor and city council of Baltimore City on the ground that he was injured in the course of his duty as an employee of that corporation engaged in an extrahazardous occupation. The claim was resisted by the city and it prayed the commission to hear and determine these issues:

"(1) Whether or not the above claimant sustained an accidental injury, arising out of and in the course of his employment by the mayor and city council of Baltimore.

(2) Whether or not the mayor and city council of Baltimore was engaged in any extrahazardous work in maintaining its public parks.

(3) Whether or not the deceased was a workman employed for wages, within the meaning of article 101 of the Annotated Code of Maryland."

A hearing was had, evidence taken, and at its conclusion the commission decided that the injury arose out of and in the course of the decedent's employment, and that such employment was extrahazardous, but that he was not a workman employed for wages within the meaning of article 101 of volume 3 of Bagby's Code P. G. L. of Md., and it accordingly denied the claim. From that order the claimant appealed to the superior court of Baltimore City, where in due course the appeal was heard. At that trial the record from the commission was read to the jury, and, while no additional evidence was taken, counsel for the parties stipulated that--

"The decedent was employed by the park board of Baltimore City, under the general authority given in section 97 of the charter of Baltimore City, Revised Edition 1915 and particularly by virtue of section 98 of said charter."

At its conclusion the defendant offered three prayers, all of which were granted. The first prayer was a general demurrer to the evidence, the second ruled as a matter of law that the decedent was not a "workman employed for wages" within the meaning of the Workmen's Compensation Act, and the third decided as a matter of law that the park board was not engaged in extrahazardous work within the meaning of the act in maintaining Druid Hill Park, and upon that issue reversed the decision of the commission. In accordance with those instructions a verdict was returned for the defendant, upon which in due course a judgment was entered, and from that judgment the claimant has appealed to this court. The only exception presented by the record relates to the court's rulings on the three prayers to which we have referred, and it submits these questions: (1) Is a "park policeman" employed by the park board of Baltimore City an officer, or is he a "workman employed for wages"? (2) If he is a workman employed for wages are his duties extrahazardous?

In addition to what has been stated, the evidence, which was undisputed, showed:

That the claimant was entirely dependent on the decedent for her support and "that decedent was equipped, while on duty, with a uniform and a kind of espantoon; that the decedent's uniform was the same as an everyday policeman, except the color of the uniform was gray instead of blue; that decedent's duties were the same as a city policeman within the park jurisdiction; * * * that these park policemen are on duty 12 hours a day, 7 days a week, and are employed for either night or day duty and are interchangeable, 'shift the same man in night or day duty the same week or month, it depends on circumstances'; that the park police arrest for violation of law in the parks, * * * but city policemen are an entirely separate force and decedent was employed exclusively by the park board, so far as witness (James Y. Kelly, secretary to the park board) knows; that the park board is authorized to employ, by statute, all men necessary to look after the parks, and that includes carpenters, workmen, stablemen, and all types of workmen in the park."

It having been conceded that the decedent was injured while he was on duty, and it appearing from the evidence that the accident occurred at a place and under circumstances sufficient to warrant the inference that it arose out of and in the course of his employment, the propriety of the court's action in granting the defendant's first prayer withdrawing the case from the jury necessarily depends upon the soundness of the proposition involved in the defendant's second prayer which was granted and upon whether the occupation in which the decedent was engaged when he was injured was extrahazardous.

For in granting the third prayer the court ruled that the defendant in "maintaining Druid Hill Park" was not engaged in "an extrahazardous work" within the meaning of the Compensation Act. That prayer was wholly collateral to the real question involved, which was not whether the entire business of maintaining that park was extrahazardous but whether the particular work which the decedent was called upon to perform was extrahazardous, and as that question was not presented by the prayer it was meaningless, and should not have been granted, although it is not apparent how it could have injured the appellant; but as the character of the employment may be involved in the ruling on the first prayer that question must also be considered. We do not understand the defendant's contention to be that hazards and danger are not natural and inherent in the employment in which the decedent was engaged, nor could such a contention be sustained if made, because not only did it expose him to dangers incident to the protection of the city's property, the suppression of disorder, the arrest and custody of violent and reckless persons engaged in violating the law, but, necessarily, it required him to traverse, cross and patrol, at all hours of the day and night, roads and drives constantly used for the large volume of traffic usually found in such a park in a great city. But the defendant's contention is rather that it was not an extrahazardous "employment" or "work" within the meaning of the act, because decedent was but an agent of the municipality engaged in the performance of a purely governmental function. And, since that is but another way of stating the proposition submitted by the defendant's second prayer, we will consider it in connection with that prayer, and the question presented by the prayer and that contention is, as we have stated, whether a park policeman employed by the park board of Baltimore City, is a workman employed for wages within the meaning of the act or an officer, and without its scope. Under the terms of the statute the mere fact that the decedent was employed by a municipality does not decide the question for it expressly provides (section 35, art. 101, Bagby's Code [Code Pub. Gen. Laws 1924]):

"Whenever the state, county, city or any municipality shall engage in any extrahazardous work, within the meaning of this article, whether for pecuniary gain or otherwise, in which workmen are employed for wages, this article shall be applicable thereto. In time of peace and while engaged in military service all officers and elisted men of the organized militia of the state of Maryland shall be deemed workmen of the state for wages within the meaning of the preceding sentence. Whenever and so long as by state law, city charter or municipal ordinance, provision equal or better than that given under the terms of this article is made for municipal employees injured in the course of employment, such employees shall not be entitled to the benefits of this article."

But it is nevertheless necessary before the claimant can recover that it affirmatively appear that at the time decedent was injured he was a "workman employed for wages" by the appellee. That he was not a "workman" in the usual and popular sense of that word seems to be plain enough, because it is ordinarily used and understood as designating one engaged in some form of manual labor skilled or unskilled (Words and Phrases, First and Second Series; Webster's Dictionary), and to extend its meaning so as to include the occupation of a policeman would be to give it an unnatural and strained construction which would not be...