Heil v. Linck

• Decision Date: 10 June 1936
• Docket Number: 49.
• Citation: 185 A. 555,170 Md. 640
• Parties: HEIL ET AL. v. LINCK.
• Court: Maryland Court of Appeals

185 A. 555

170 Md. 640

HEIL ET AL. v. LINCK.

No. 49.

Court of Appeals of Maryland

June 10, 1936

Rehearing Denied July 7, 1936.

Appeal from Court of Common Pleas of Baltimore City; Joseph N Ulman, Judge.

Proceeding under the Workmen's Compensation Law by Mortana M. Linck for the death of Henry John Linck, her husband, opposed by Henry Heil, employer, and the State Accident Fund, insurer. From a judgment in the court of common pleas reversing an order of the State Industrial Accident Commission denying compensation, the employer and insurer appeal.

Reversed and remanded for judgment in conformity with opinion.

OFFUTT URNER, and MITCHELL, JJ., dissenting.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Albert A. Levin, of Baltimore (Herbert R. O'Conor, Atty. Gen., on the brief), for appellants.

Maurice J. Pressman, of Baltimore (Thomas Charles Williams, of Baltimore, on the brief), for appellee.

SHEHAN Judge.

This case arises under the Workmen's Compensation Law (Code Pub.Gen.Laws 1924, art. 101, § 1 et seq. as amended). Henry Heil, the employer of Henry John Linck, deceased, and the State Industrial Accident Fund, Insurer, are appellants.

Mortana M. Linck, widow of the deceased, as claimant, recovered a judgment in the court of common pleas of Baltimore City, reversing an order of the State Industrial Accident Commission. The only question to be considered in this appeal is, "Was the death of Henry John Linck the result of an accidental injury sustained by him on August 16, 1935, arising out of and in the course of his employment?"

On this issue the State Industrial Accident Commission decided in favor of the appellants. Upon appeal to the court of common pleas there was a verdict rendered in favor of Mortana M. Linck, the appellee, and from the judgment entered thereon this appeal was taken.

Henry Heil, the employer, was engaged in the wholesale and retail of meats, and for that purpose conducted several places of business in the city of Baltimore. One of the retail businesses was located in the North Avenue market and another was on the Falls road. Back of the Falls road store there was a wholesale meat plant. Connected with these establishments were refrigerating rooms, and in them the employees performed such services as were incident to their employment. Henry John Linck, the deceased, who was 56 years of age at the time of his death, had worked as a meat cutter for Henry Heil for 5 or 6 years, and for a greater part of the time he was employed at the Falls road place of business, but at times he worked at the North Avenue market. His employment at these places was similar. He habitually worked on Friday afternoons; and, at other times, at the North Avenue market in cutting quarters of beef in the cooling room This work ordinarily required his presence in that room for about 30 minutes. As a part of his work, the deceased, with some assistance, carried these quarters of beef, weighing from 130 to 160 pounds, a short distance and placed them upon a block for the purpose of cutting them into smaller pieces.

On Friday, August 16, 1935, between the hours of 3 and 4 o'clock, p. m., the deceased had gone to the North avenue plant, to cut quarters of beef, as was his habit. The temperature of the cold room was approximately 32 degrees. With Mr. Watts, another employee, the deceased was engaged in lifting from a hook a hind quarter of beef, weighing about 130 pounds, which both of them carried for the short distance of 8 or 10 feet to a meat block where Mr. Linck cut it in small pieces. Shortly afterwards they lifted from a hook a fore quarter of beef weighing about 160 pounds, and both of them carried it the same distance to the block, and Mr. Linck cut that into about 20 pieces. The work was completed in approximately one-half an hour from the time he entered the cold room until he returned to the stall in the market. He smoked a cigarette, engaged in some conversation for about fifteen minutes, when he suddenly dropped dead. The widow testified that her husband enjoyed good health until about a week before he died, at which time he complained of a pain in the left side of his chest, and thought it was indigestion; that he never lost any time from work on account of sickness; that when he left home for work on the morning of August 16, 1935, "he appeared to be perfectly all right," said that he "felt fine," and during the course of the day of his death he told Mr. Blucher, the manager, that he "felt fine."

The testimony is somewhat at variance as to just how hot the day was. The weather bureau showed the highest temperature was 89 degrees, and the lowest was 74 degrees, and at 3 p. m. it was 88 degrees, and at 4 p. m. 89 degrees. At noon the humidity was 59 degrees. The deceased claimed he was very cold when he came out of the cold room, and had the appearance of suffering from it.

The testimony in this case, especially that of Mr. Blucher and Mr. Heil, establishes the fact that no separate employees were engaged for the wholesale plant, as distinguished from the retail plant, and that on Friday afternoons Mr. Linck, as a part of his regular duty, cut meat in the cool room of the wholesale plant, and for that purpose remained there for approximately a half hour; that incident to his regular duties he carried fore and hind quarters of beef, weighing from 130 to 160 pounds for a distance of 8 to 15 feet; that the working conditions in the North avenue plant and the Falls road plant were about the same with regard to the cooling rooms; that this constituted a part of the regular employment of the deceased, in which he had been engaged for a long time. There is no evidence in the case that the deceased was doing other than being engaged in the routine performance of his labor, and the evidence clearly shows that he "had completed his day's work without receiving any injury by impact or contact or as the result of any unusual muscular exertion or unexpected movement." Miskowiak v. Bethlehem Steel Co., 156 Md. 690, 145 A. 199, 201.

It is urged that this case falls within the ruling of State Roads Commission v. Reynolds, 164 Md. 539, 165 A. 475, but we think that the facts bring it within the case of Miskowiak v. Bethlehem Steel Co., supra. The complainant has drawn an instructive parallel between the latter and the instant cases. In both of them it seems that there was a very hot day, there was heavy lifting and carrying, the working time was approximately a half hour in each case, the deceased in each case had worked 5 or 6 years in the same employment, both of them manifested a disturbance of some kind after completing their work, there was no accidental injury, as defined by Judge Parke in the Miskowiak Case, each had completed his work for some period of time, and both of them died shortly thereafter. In that case compensation was denied by this court; in this case the accident commission denied the claimant compensation, and this finding carries with it a prima facie presumption that she is not entitled to it. States Engineering Co. v. Harris, 157 Md. 487, 146 A. 392.

This case can readily be distinguished from State Roads Commission v. Reynolds, supra. There an elderly man, 74 years of age was employed by the state roads commission in very light service or work. He was a road patrolman engaged in picking up paper and trash, and doing other light work along the road. On an exceedingly hot day he was removed from his usual work and detailed to assist in loading heavy stones into a truck, in the direct rays of the sun, and while doing that work complained of pain in his chest, and shortly thereafter died as a result of heat prostration. In the instant case the deceased never varied from his usual and ordinary tasks. There was no evidence of undue exposure to heat or cold, nor did he perform any duties not incident to his usual employment, and not burdensome beyond those in which he was regularly engaged. In the instant case there was no sharp contact with unusual conditions, or any eventualities beyond those that could be ordinarily expected in his employment. In the case of Slacum v. Jolley, 153 Md. 343, 138 A. 244, there was a heat prostration. The employee was operating a bus, on a hot day, without a ventilator. He complained of the excessive heat, and this court said that to entitle the claimant to compensation it is essential that there be at least some evidence that her husband died of a sun stroke, or heat prostration, and that such injury was occasioned by some unusual and extraordinary condition in his employment, not naturally an ordinary incident thereto. That pronouncement of the law applies equally to the instant case and to that case. In the Atlantic Coast Shipping Co. v. Stasiak, 158 Md. 349, 148 A. 452, the employee developed a hernia while at work as a stevedore, and this court held that he was not entitled to compensation, because there was no evidence that the injury was caused by a strain, or by any condition not incident to the claimant's employment. In the very recent case of Robertson v. North American Refractories, 169 Md. 187, 181 A. 223, it was there shown that the deceased was working at firing a kiln and was found dead, lying on his back on a coal pile before the kiln and behind his working space, and there were burns on his forehead, his cheek, and left hand. From the presence of these burns, the claimant assumed an accident, product of a heart stroke, and on the theory that the burns preceded the stroke and produced it by shock. This court affirmed the lower court which denied compensation and said, "If there was an accidental cause of the death, it is, in this as in all other instances, regrettable that for want of witnesses to...