Kramer v. Globe Brewing Co.

• Decision Date: 30 November 1938
• Docket Number: 6.
• Parties: KRAMER v. GLOBE BREWING CO. et al. [*]
• Court: Maryland Court of Appeals

2 A.2d 634

175 Md. 461

KRAMER v. GLOBE BREWING CO. et al. ^[*]

No. 6.

Court of Appeals of Maryland

November 30, 1938

Appeal from Baltimore City Court; Robert F. Stanton, Judge.

Proceeding under the Workmen's Compensation Act by Elmer Kramer against the Globe Brewing Company and another. From a judgment affirming an award of the State Industrial Accident Commission denying compensation, claimant appeals.

Reversed and remanded.

Harry E. Goertz and Joseph Loeffler, both of Baltimore (Bernard J. Medairy, of Baltimore, on the brief) for appellant.

William T. Tippett, Jr., and Morton H. Rosen, both of Baltimore, for appellees.

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

MITCHELL Judge.

On July 9, 1936, the appellant sustained serious injuries through the overturning of a truck, alleged to have been negligently and recklessly driven by Charles F. Crist, a chauffeur-salesman of the appellee. The facts of the case are, briefly, as follows:

Crist at the time of the accident was an employee of the appellee engaged in the business of selling and delivering bottled beer on a regular route extending into rural territory adjacent to the City of Baltimore. His compensation was in the form of a weekly wage, plus a commission on each case of beer handled by him.

He testified that under his contract with his employer he was not allowed a helper, and he was forbidden to permit helpers or other persons to ride on the employer's truck which was placed in his charge for the purpose of serving customers; that notwithstanding the orders of his employer and due to the laborious character of his work in busy times he employed helpers from time to time, without the knowledge of his employer; and that on July 6, 1936, he picked up the appellant as an assistant, personally paying him a daily wage and furnishing him with meals.

The employment of the helper, in manner above indicated, extended over a period of four days; and on the evening of the fourth day, while returning to the brewery of the appellee, and with Crist at the wheel, the truck was overturned, causing the injury of which the appellant complains.

Immediately after the accident, the injured man was placed in a hospital; and on his behalf Crist expended from $40 to $50 toward the hospital expenses. For these expenses, and the wages he paid his helper, Crist testified that he had never been reimbursed by his employer. He further testified that he employed the helper upon his own initiative, and that such employment was never acquiesced in or ratified by the appellee. This latter statement was corroborated to some extent by the appellant, who testified that he never was formally employed by the appellee.

Upon this state of facts, the appellant brought an action at common law, in the Superior Court of Baltimore City, against the Globe Brewing Company, the appellee, and the said Crist, based on the injury above noted.

The declaration in that case contained two counts; the first alleging that the plaintiff was injured while riding in a truck owned by the Brewing Company and operated by Crist, with the consent and acquiescence of both defendants, through the carelessness, recklessness and negligence of Crist in operating the truck, and without any negligence of the plaintiff contributing thereto.

The second count alleged the employment of Crist by the Brewing Company; that Cirst employed the plaintiff with the knowledge and consent of the latter, and that as such employee, he was injured in manner indicated.

The bill of particulars states that the plaintiff was riding in the Brewery Company's truck with the knowledge and consent of the corporate defendant; but as a helper for the defendant, Crist, at his request and for the day on which the accident occurred, and further details the manner in which the recklessness charged occurred.

A demurrer to the declaration being interposed and overruled, the defendant, Crist, filed the general issue plea, and the corporate defendant thereupon filed both the general issue plea, and a second or special plea. By its latter plea it set forth that if it should be determined at the time of trial that the plaintiff was an employee of the corporate defendant, at the time of the accident, then the plaintiff had no remedy at law against said defendant, and that his exclusive remedy against said corporate defendant accrued under the provisions of the workmen's compensation act, by virtue of which said act the said defendant had provided compensation for its employees, with the approval of the State Industrial Accident Commission.

A demurrer to the above special plea was filed by the claimant and sustained by the Court, and thereupon the corporate defendant filed an amended special plea as follows: 'That at the time of the accident herein complained of, the plaintiff, Elmer Kramer, was an employee of The Globe Brewing Company; That the injuries complained of by the plaintiff arose out of and in the course of his employment; That The Globe Brewing Company had complied with the terms and provisions of Article 101 of the Code, commonly known as the Workmen's Compensation Act, by providing with the approval of the State Industrial Accident Commission, compensation for its employees in one of the ways set forth in said Act; That the liability of this defendant for compensation is exclusive to the Plaintiff.'

Upon the filing of the latter plea, the plaintiff entered a motion in the trial Court, in which he set forth that prior to the filing of the amended special plea the corporate defendant had denied that the plaintiff was its employee and hence was not entitled to compensation pursuant to the provisions of the Workmen's Compensation Act; and that the purpose and effect of said amended special plea being to oust the jurisdiction of the Court in the premises, as against the corporate defendant, and to remit the plaintiff to his claim for compensation against it under the provisions of the Compensation Act; and because of, and in reliance upon said plea, the plaintiff desired to discontinue the action against both defendants, 'without prejudice to any rights he may have against both or either of them'.

Acting upon the above motion, the trial Court ordered a non pros., thereby terminating the case in the Superior Court, before any testimony was taken.

In this situation, the appellant made formal application for compensation, to the State Industrial Accident Commission under the provisions of Art. 101, of the Code, or the Workmen's Compensation Act. The claim was disallowed by the Commission, and subsequently an appeal was taken by the claimant to the Superior Court of Baltimore City. Upon application for removal, the case was transferred to The Baltimore City Court for trial, and by agreement of counsel for the respective parties, was submitted to a jury in the latter Court under issues as follows: (1) Was the plaintiff an employee of the defendant, The Globe Brewing Company?, and (2) were his injuries sustained in an accident arising out of and in the course of his employment?

The verdict of the jury in the latter case being in favor of the corporate defendant, the action of the State Industrial Accident Commission was accordingly affirmed, and from that judgment this appeal was taken.

At the trial below, the claimant rested his case upon his own testimony, which, in effect, tended to substantiate the facts hereinbefore detailed. On cross examination he stated that he had never applied to the defendant for employment, but that two months before meeting Crist he had made inquiry at the defendant's office if it needed any help, and was told at that time that it did not.

The defendant thereupon produced Crist who confirmed the aforegoing narrative of the case, adding that he did not report his employment of the claimant, to his employer.

Following the next above testimony, the defendant offered in evidence all of the pleadings which had been filed by the respective parties in the original common law action, together with the docket entries pertaining thereto. And it then offered in evidence the testimony of the attorney who filed the several pleadings in its behalf, tending to show that the amended special plea was filed by him with the single purpose of directing the claimant to the proper tribunal before which his case should be first heard, and thereby defeating the common law action.

During the course of the trial, twelve exceptions were reserved by the claimant to the rulings of the lower Court on evidence.

Of these, the first was abandoned in this Court, and the remaining exceptions of the above class, relate entirely to the admissibility of the testimony of the attorney, along the line above indicated.

A thirteenth exception was reserved to the Court's ruling on the prayers, and these exceptions will now be considered in the order of their sequence.

The record presents a situation in which the testimony of the claimant tends to show that he never was formally employed by the defendant, and yet, in direct conflict with that testimony, the defendant by its special plea in a prior case, growing out of the same accident affirmatively sets up: (a) That the claimant was its employee at the time of the accident resulting in his injury, and (b) that such injury arose out of and in the course of his employment. It is, therefore, apparent that the correctness of the trial Court's rulings with reference to the questions raised by the first group of...