Hutzell v. Boyer

• Citation: 249 A.2d 449,252 Md. 227
• Decision Date: 23 January 1969
• Docket Number: No. 23,23
• Parties: Claude M. HUTZELL v. Robert E. BOYER.
• Court: Court of Appeals of Maryland

Page 227

252 Md. 227

249 A.2d 449

Claude M. HUTZELL v. Robert E. BOYER.

No. 23.

Court of Appeals of Maryland.

Jan. 23, 1969.

Kenneth J. Mackley and Evan Crossley, Hagerstown (Howard W. Gilbert, Jr., Ottinger, Mackley & Gilbert and Crossley & Latimer, Hagerstown, and Francis B. Burch, Atty. Gen., and William E. Brannan, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Leroy W. Preston, Baltimore (O'Connor & Preston, Baltimore, Irving M. Einbinder, Hagerstown, and Edwin F. Nikirk, Frederick, on the brief), for appellee.

Before HAMMOND C. J., and MARBURY, BARNES, FINAN and SINGLEY, JJ.

FINAN, Judge.

In 1963 plaintiff-appellee, Robert, E. Boyer and defendant-appellant, Claude M. Hutzell, had been working on various paving construction jobs in the Fredericksburg, Virginia area. During that year the superintendent of paving for the General Paving Corporation, Mr. Robert Cole, offered both men jobs with his company. General Paving is a Virginia corporation engaged in the laying of asphalt roads and driveways in the Fairfax, Virginia area. The offer included higher wages and free transportation furnished by the company to and from work each day. Both plaintiff, Boyer and defendant, Hutzell, accepted the jobs offered by Mr. Cole. Boyer went to work as a roller and Hutzell as a foreman. Boyer and Hutzell resided near Boonsboro, Maryland and had known each other for a long time, having worked together for a number of years. General Paving gave Hutzell the use of a company truck which he regularly drove back and forth from his home to various construction sites. Boyer would drive his car to Hutzell's residence and would then ride to work in the company truck with Hutzell. They haf followed this procedure for more than two years prior to the accident.

On September 10, 1965, the two men left their homes in Boonsboro at approximately 4:00 A.M. and traveled to Fairfax, Virginia, where General Paving was engaged in laying macadem on a parking lot. The job was completed in the afternoon and Hutzell and Boyer got into the truck and started for home. On the way they stopped near Fairfax and purchased four cans of beer. Hutzell drank one can and poured another out because it was too warm. Boyer drank all of the contents of one can and half of the other. Hutzell had drunk no other alcoholic beverage that day and, according to Boyer, Hutzell's manner of driving was satisfactory. The plaintiff, Boyer, was riding in the cab of the truck on the passenger side and the defendant, Hutzell, was driving. They had covered most of the eighty miles between Fairfax and Boonsboro while, at approximately 5:00 P.M., while approaching the top of Braddock Mountain in Frederick County, Maryland, Boyer noticed that the truck was pulling off the road onto the shoulder and he thought they had a flat tire. He glanced over at Hutzell and saw that he had fallen asleep. Boyer tried to stop the truck. He reached over, grabbed the steering wheel and hit the brakes, but the truck went off the road, through a fence and struck a utility pole. The truck was a total loss and Boyer, who was seriously injured, was taken from the scene by ambulance to a hospital in Frederick, Maryland. He had sustained fractures to a number of ribs and other internal injuries. On the third day after his admission to the hospital Boyer suffered, what his treating physician diagnosed as, acute pulmonary edema which filled his lungs and which condition was attributed to the accident. Boyer was in the hospital for twenty-four days and continued under doctor's care until the time of trial.

Boyer filed a claim for disability compensation with the Workmen's Compensation Commission of Maryland but, by order dated January 13, 1966, the claim was denied on the ground that the Commission was without jurisdiction. No claim was filed by Boyer with the equivalent agency in Virginia. Instead, Boyer alleging permanent injury, filed a common law tort action against Hutzell and the General Paving Corporation in Washington County, Maryland. On motion by way of a preliminary objection, General Paving was dismissed as a party defendant. Interrogatories were filed by both parties and answered. The plaintiff was examined by the defendant's medical witness and the plaintiff's doctor was deposed prior to trial. The case was set for trial on May 22, 1967. Prior to the trial the defendant sought to have the plaintiff examined a second time because the defendant learned, after taking the deposition of the plaintiff's physician, Dr. Secondari, that the plaintiff's condition had worsened and that Dr. Secondari felt that this condition would be permanent. This request for the second examination of the plaintiff by the defendant's medical witness was refused by the trial court but the defendant's medical witness was given access to all hospital records and electrocardiograms which had been taken at the hospital.

On May 17, 1967, the defendant filed a notice that at trial he intended to rely on the statutory and case law of Virginia pertaining to a tort action by one employee against another fellow employee.

At trial the testimony of opposing medical expert witnesses was sharply in conflict as to the nature and extent to the plaintiff's physical disability and as to the causal connection between Boyer's physical condition and the injuries sustained in the accident. The plaintiff's family physician testified that Boyer was suffering from a heart condition brought on by the accident which rendered him totally and permanently disabled. The defendant's expert medical witness found no edema and testified that the plaintiff had a predisposition to the development of arteriosclerosis and hypertensive heart disease. He was of the opinion that the causal connection between the accident and the plaintiff's physical condition was a probability but 'not a strong one.' At the close of the plaintiff's case and again at the close of the defendant's case, the defendant moved for a directed verdict, both of which motions were denied. The defendant also moved that the 52 year old plaintiff be required to reduce to present value his future lost earnings, which motion was likewise denied. The lower court instructed the jury that, as a matter of law, the defendant was guilty of negligence in falling asleep while operating a motor vehicle and the only question for them to decide was the amount of damages to which the plaintiff was entitled. The jury returned a verdict in the amount of $70,000.00. Subsequent motions for a judgment n. o. v. or for a new trial were denied.

On appeal the appellant contends, (1) that the defendant's tort action in Maryland was foreclosed by the exclusiveness of the Virginia Workmen's Compensation Law; (2) it was an abuse of discretion of the trial court to refuse to allow a second medical examination of the plaintiff; (3) that the trial court erred when it refused appellant's proffered prayer requiring the determination of the present value of the appellee's damages for future medical care, loss of wages and earning capacity; and (4) that the trial court's instructions to the jury on liability were erroneous.

I

Of the four grounds for appeal, only the first presents any difficulty of resolution and with regard to it we think the rationale of the lower court was correct.

In the case at bar there is no question, but that the contract of employment was made in Virginia, all the work was performed there and the employer furnished the transportation to and from the empoyees' residence in Maryland to the job site in Virginia; however, the accident happened in Maryland. The Virginia Workmen's Compensation statute, Section 65-37 of the Code of Virginia (1950), provides that the rights accorded an employee under the Workmen's Compensation Law excludes all of his other rights and remedies, at common law or otherwise, arising out of his injury. This excludes a tort action by one employee against another fellow employee. Phillips v. Brinkley, 194 Va. 62, 72 S.E.2d 339 (1952).

The Maryland Workmen's Compensation Law, Code (1964 Repl. Vol.) (1957) art. 101, § 1 et seq. excludes an action in tort by an employee against his employer, but does not exclude tort actions between co-employees.

The plaintiff sought to invoke the benefits of the Maryland Workmen's Compensation Law, Filing a claim for compensation under our Act, seeking an award for the disability sustained as a result of the accident which is the subject of this suit. However, under an order dated January 13, 1966, the Maryland Workmen's Compensation Commission dismissed the claim on the ground that the Maryland Commission was without jurisdiction.

It is also significant that the plaintiff did not file any workmen's compensation claim with the equivalent agency in Virginia.

In the instant case the core of the appellant's argument is that compliance with the 'Full Faith and Credit Clause' of Article IV, Section 1 of the Constitution of the United States, requires us to apply the Virginia Workmen's Compensation Law, with its exclusive feature, unless to do so obnoxious to the declared public policy of this State.

The appellant makes a strong case that there is nothing extant in Maryland case or statutory law which supports a formulated or defined public policy against granting immunity to fellow employees from tort action, as provided in the Virginia statute; hence, appellant contends we should honor the Virginia law. However, his argument has not persuaded us.

Although there are no decisions in this Court involving a tort action by an employee against a co-employee, we note the fact that for over 50 years the Workmen's Compensation Law of this State has contained no express prohibition against such a suit. Indeed, at least one nisi prius court has held that a tort action could lie against a negligent fellow servant. Crown Cork and Seal Co. v. Hutter (Superior Court of Baltimore City) Daily Record, March 13, 1943.

We also...