Jackson v. Ferree

• Decision Date: 12 January 1938
• Docket Number: 77.
• Citation: Jackson v. Ferree, 173 Md. 400, 196 A. 107 (Md. 1938)
• Parties: JACKSON v. FERREE et al.
• Court: Maryland Court of Appeals

196 A. 107

173 Md. 400

JACKSON v. FERREE et al.

No. 77.

Court of Appeals of Maryland

January 12, 1938

Appeal from Circuit Court, Allegany County; David A. Robb, Judge.

Proceeding under the Workmen's Compensation Act by Thomas Russell Jackson, claimant, opposed by Marshall and McDonough Ferree trading as Frostburg Auto Company, employer, and the Glens Falls Indemnity Company, insurer. From a judgment of the circuit court affirming the order of the State Industrial Accident Commission denying an award, claimant appeals.

Affirmed.

Taylor Morrison, of Cumberland (Edward J. Ryan, of Cumberland, on the brief), for appellant.

George Henderson, of Cumberland (J. Marshall Neel, of Baltimore, on the brief), for appellees.

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

JOHNSON Judge.

Thomas R. Jackson, 33 years of age, had been employed as a mechanic with the Frostburg Auto Company for approximately ten years prior to October 9, 1936, on which date, about 2:30 o'clock in the afternoon, he was stricken with hernia, to secure compensation for which he filed a claim with the State Industrial Accident Commission, alleging it was caused by an accidental injury arising out of his employment. At the hearing before the commission on December 10, 1936, eight issues were submitted, the first of which was whether Jackson sustained 'an accidental injury causing hernia arising out of and in and course of his employment.' The commission answered the first issue 'no,' and accordingly did not pass upon the other issues. Claimant thereafter appealed from that decision to the circuit court for Allegany county, where the case was heard upon the eight issues similar to those considered by the commission. At the conclusion of the testimony offered on behalf of the claimant, the trial court granted a prayer offered by his employer, and the latter's insurer, instructing the jury that there was no evidence in the case legally sufficient to prove claimant sustained an accidental personal injury on or about October 9, 1936, and their answer to the first issue should be 'no.' An exception to that ruling was reserved by claimant, and this is the principal question before us for consideration on claimant's appeal from the judgment thus rendered against him.

In detailing the circumstances under which the hernia occurred claimant testified that on the date in question he was putting the rear wheel on a truck; that this required the use of a new key, and after he had the wheel a part of the way on the axle, it stuck and 'the pain came on'; he 'turned around and in a little while the pain disappeared.' He reported this to his foreman and felt no further discomfort until about 9 o'clock that evening when, upon getting ready to retire, he examined himself and found 'a lump upon his stomach'; that he returned to work the following morning and reported the matter to his employer, who sent him to a physician, by whom he was informed of the existence of the hernia; and that he subsequently underwent a surgical operation for its correction.

On cross-examination, he testified that he had put on 'a good many wheels of the same type,' also that he did not recall slipping while attempting to put on this particular wheel; that he did not fall, but as he was 'shoving the wheel on it stuck and jarred me and the pain struck me.' He also testified that other men employed by the same company did the same line of work and that...