Krell v. Maryland Drydock Co.

• Decision Date: 02 March 1945
• Docket Number: 16.
• Citation: 41 A.2d 502,184 Md. 428
• Parties: KRELL v. MARYLAND DRYDOCK CO. et al.
• Court: Maryland Court of Appeals

41 A.2d 502

184 Md. 428

KRELL v. MARYLAND DRYDOCK CO. et al.

No. 16.

Court of Appeals of Maryland

March 2, 1945

Appeal from Baltimore City Court; Joseph Sherbow, Judge.

Proceeding under the Workmen's Compensation Act by Catherine Krell claimant, widow of Theodore Krell, deceased, for the death of her husband, opposed by Maryland Drydock Company, employer and Manufacturers Casualty Insurance Company, insurer. Claimant appealed to the Baltimore City Court from a decision of the State Industrial Accident Commission disallowing her claim and from a judgment entered upon a directed verdict in favor of the employer and insurer, claimant appeals.

Judgment a reversed and case remanded for a new trial.

Paul Berman and Eugene A. Alexander, III, both of Baltimore (Avrum K. Rifman, of Baltimore, on the brief), for appellant.

William D. MacMillan, of Baltimore (Harold Tschudi and Semmes, Bowen & Semmes, all of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN HENDERSON, and MARKELL, JJ.

COLLINS Judge.

Catherine Krell, appellant here, filed with the State Industrial Accident Commission a claim on her behalf and on behalf of her three dependent children for compensation. She alleged that her husband, Theodore H. Krell, died on October 28, 1943, as a result of an injury sustained by him that day in the employment of the Maryland Drydock Company, his average weekly wage being $68. She further alleged that while working on a pier, he fell overboard and drowned. After a hearing before that Commission on July 7, 1944, the claim was disallowed. From that decision she appealed to the Baltimore City Court. After trial before a jury, on October 16, 1944, the appellee offering no evidence, the trial judge granted the employer's and insurer's A and B prayers: (a) instructing the jury that the claimant had offered no evidence legally sufficient to establish the fact that Theodore Krell died on or about October 28, 1943, and (b) that no evidence was offered legally sufficient to establish the fact that Theodore Krell died as a result of an accidental personal injury sustained by him arising out of and in the course of his employment by the appellee on that date. The Court further directed a verdict for the appellee. From the judgment entered on that verdict, the appellant appeals to this Court.

Substantially, the evidence presented by the appellant at the trial below follows. Theodore H. Krell at the time of the alleged accident was forty-seven years of age, and his wife, thirty-nine years old. They were married on October 24, 1923, and had lived together ever since that time with no domestic or financial difficulties. They went out occasionally to moving picture shows, to see his friends, his family, and his mother. They had six children, three of whom were dependent upon the husband for support. He treated his wife and children well, had a happy disposition, worked regularly and except for an occasional glass of beer, drank very little. He was a dutiful son and a good husband and father. He had been working for his employer for about ten years and recently ten hours a day, seven days a week. His health was good, and he had not been treated by a doctor since his marriage. On the morning of the alleged accident his health and disposition seemed to be as usual with no domestic or financial difficulties. He apparently had no reason to leave home. He enjoyed the respect of his fellow employees with whom he was popular and was regarded as sober, upright, dependable and one who never required much supervision.

He was employed as a fireman and guard. It was his duty to see that every ship that came into the yard had proper fire protection equipment aboard, fire hose, fire extinguishers, and general fire fighting equipment. It was his duty to see that the hose was placed on the bow part of the ship on different decks, where there was more than one deck, leading directly to and connecting with the fire hose connection on the pier. He was required to make occasional trips during his eight-hour shift to see that these hoses were still in proper condition and available for fighting fires. If a ship left the yard, he was required to go aboard approximately one half to three quarters of an hour before leaving time and clear that ship of fire fighting equipment, place it on the pier and store it until again needed.

There are five piers at the Maryland Drydock Company from 600 to 800 feet long with no rails. The water runs from 15 to 20 feet in depth. Ocean-going merchant vessels, tankers, and navy boats tie up at these piers. In addition to the piers there are four floating drydocks located one between each pier. On October 28, 1943, there were about eighteen vessels tied up at the Maryland Drydock. To get from the pier on the boats there are normal stairs with hand rails. In some cases there is a temporary ladder placed on each side of the boat for the safety of the workmen in the event that something might happen. There are ladders on the pier to the bulwark of the ship. The sides of the ships which Krell was supposed to board are from one to two feet from the piers depending upon the tide and wind.

The property of the Maryland Drydock Company runs about three quarters of a mile along the water front. In addition to the boats that are tied up at the piers, there is a ferry that comes in on the east side of the Maryland Drydock property. A gate leads from the premises of the Maryland Drydock to the ferry pier. It is not possible for any one to get out of the property of the Maryland Drydock Company without going through a gate at which there are guards if the gate is open, or by boat other than the ferry. When a workman leaves the yard during working hours, his number is taken. When a guard leaves the yard, his number is not taken, but the other guards are in a position to see him go in and out. The time for the change of shift on which Krell was working was 4:30 p.m. He worked from 7 to 3 in the yard and from 3 to 5 on the parking lot outside the gate directing traffic.

On the alleged date of death, Mr. Krell rode from his home to his work in the automobile of John A. McMullen, his immediate boss, a lieutenant of guards at the Maryland Drydock Company. He had been riding to work with McMullen every morning and home every evening for three or four months. On his way to work he wore plain work clothing and a felt hat. He would work in the same clothes except that he would change to a uniform hat. He checked in at the plant and was seen by McMullen at 11 o'clock that morning.

He was last seen at about 2 p.m. by Captain Burling L. Rogers who was in charge of plant protection and security. At that time Rogers looked out of his office window which is below the level of the ground, and he saw Krell walking on the ground along the edge of the seawall toward No. 3 drydock. The seawall is of concrete and about the same width as the street, 20 or 25 feet wide, wide enough for two trucks to drive along it and adjoins the water and has a slope of about 12 inches. He was walking a little faster than dressed in a raincoat and with a rain cover over his cap. Walking along anywhere in the yard would have been in line with his work. Rogers does not know whether he had on rubber boots or not as he could not see below his knees. The guards usually wore rubber boots in rain or snow. It had been raining all that day, off and on. At the time Krell was seen by Rogers, it had cleared off somewhat, but it was probably misty. When Krell failed to show up at the parking lot about 3:15 p.m., McMullen began to inquire in the yard to determine if he had been seen. Neither the guard whom Krell was supposed to relieve at that time nor any of the guards on the piers or at the entrance gates had seen him.

Captain Rogers about 5 p.m. received a call stating that they could not locate Krell. Immediately a searching party was organized throughout the yard in all the buildings everywhere in the yard, on the ships, around the water front, on the parking lot and everywhere where it was thought he could be. The day shift was kept overtime that night and about eight men stayed until dark, and they searched every ship there. Instructions were issued as each shift came in to search the ships, and a detail was assigned as a searching party.

The Baltimore City Police Department was notified, and the police boat proceeded to drag around the piers and along the seawall and around the drydocks. The police boat of the Maryland Drydock Company continually patrolled in and around the piers. About two days later a diver was called in to go down around one of the piers and drydocks. A few days later a long line equipped with welding rod hooks was seesawed from one side of the drydock to the other. Captain Rogers testified that he does not know of anything that could have been done to locate Krell that had not been done and further that every one in the yard was looking for him and that there were from forty-five hundred to five thousand men employed there. Krell's locker was searched and in it were found his hat and shoes worn to work by him that morning. His work card showed that it was not punched out that day.

Testimony was offered by Dr. Robert Lee Graham, specializing in post mortem examinations, that in cold weather a drowned body often does not come to the surface, but in the springtime when the water gets warmer, bodies usually rise to the surface. Edward B. Kilchenstein, a detective sergeant of the Baltimore Police Department, testified that Krell's description was placed on a teletype, given to all the districts in Baltimore City, placed on lookout sheets, and sent through the mail to forty-three cities.

Although a year, with the...