Jewel Tea Co. v. Weber

Citation103 A. 476,132 Md. 178
Decision Date16 January 1918
Docket Number104.
PartiesJEWEL TEA CO. v. WEBER.
CourtCourt of Appeals of Maryland

Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr. Judge.

Proceedings by Mary M. Weber under the workmen's compensation law for the death of Frank J. Weber, opposed by the Jewel Tea Company, employer. An award of compensation was affirmed after trial to a jury on appeal to the circuit court, and employer appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Edward M. Hammond, of Baltimore, for appellant.

James Clark, of Ellicott City (William Colton and Philip Sachs both of Baltimore, on the brief), for appellee.

THOMAS J.

Frank J. Weber, in March, 1916, was employed by the Jewel Tea Company, a corporation, as driver and salesman. As such driver and salesman he had charge of a "team of mules and a wagon," and his duties were to drive through the country, along a designated route, and to take orders for and deliver goods and merchandise for the company. On the 11th of March, 1916, Weber and Harry F. Ferguson, another driver and salesman of the company, were together, and at the end of the day's work they drove the wagon to a stable in Savage Md. According to the testimony of Ferguson, after the hostler put the mules in the stable and hung the harness up, he (Ferguson) went into the stable and saw Weber in another part of the stable "'doubled over," and when he asked him how it had happened, Weber told him that the hostler had thrown the harness on the hook, and that when he went in the stable to fix it one of the mules kicked him. Weber was taken home that evening and placed under the care of a physician, to whom he stated that the mule had kicked him in the stomach. About two weeks later he was taken to a hospital and operated on for appendicitis, and died on April 12th from "general peritonitis following an acute attack of appendicitis" which, according to the testimony of the doctor who attended and operated on him, was caused by the kick he received. Mary M. Weber, the widow of the deceased, filed a claim for compensation under the provisions of the workmen's compensation law. The claim was resisted by the company, and a great deal of testimony was produced by it before the State Industrial Accident Commission for the purpose of showing (1) that the attack of appendicitis of which Weber died was not caused by the kick; and (2) that at the time he was injured he was not acting within the scope of his employment by the company. The commission, however, found that Weber was injured while in the employ of the company, "that as a result of said injury he died on the 12th of April, 1916, and that said injury arose out of and in the course of his employment," and awarded his widow compensation to the amount of $7.50 per week for the period of 7 years and 47 1/2 weeks. From the order of the commission the company appealed to the circuit court for Howard county. The case was tried in that court by a jury, on the evidence produced before the commission. After the evidence was read to the jury, the company (the appellant in the court below) offered four prayers, and the claimant (the appellee in the court below) offered one prayer. The appellant's first and second prayers sought to withdraw the case from the jury on the ground that the appellee had offered no evidence legally sufficient to entitle her to recover, and on the further ground that there was no evidence in the case legally sufficient to show that the injury received by Weber "was received by him while he was acting within the scope of his employment." By the appellant's third prayer the court was asked to instruct the jury that the burden of proof was on the appellee to show "that when Weber was injured he was acting within the scope of his employment," and its fourth prayer instructed the jury that, unless they found "that the appendicitis from which Weber died was the result of the mule kick complained of in the evidence," their verdict should be for the appellant. The court below rejected the appellant's first, second, and third prayers, and granted its fourth prayer, and also granted the prayer of the appellee, which instructed the jury that the burden was on the appellant to prove that the decision of the State Industrial Accident Commission was incorrect. The only exception in the case is to the granting of the appellee's prayer and the rejection of the appellant's first, second, and third prayers. The verdict of the jury was in favor of the appellee, and this appeal is from the judgment of the court below confirming the order of the commission.

While counsel in the case have, with commendable industry, filed in this court very full and carefully prepared briefs, the questions presented by the record are very narrow, and are, we think, fully covered by the decisions of this court.

In reference to the company's third prayer, and the burden of proof in the...

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