M.P. Moller Motor Car Co., Inc. v. Unger

• Decision Date: 30 January 1934
• Docket Number: 18.
• Citation: 170 A. 777,166 Md. 198
• Parties: M. P. MOLLER MOTOR CAR CO., INC., ET AL. v. UNGER.
• Court: Maryland Court of Appeals

170 A. 777

166 Md. 198

M. P. MOLLER MOTOR CAR CO., INC., ET AL. v. UNGER.

No. 18.

Court of Appeals of Maryland

January 30, 1934

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

Proceeding by Alice C. Wolf to recover compensation under the Workmen's Compensation Act for the death of William F Wolf, employee, opposed by the M. P. Moller Motor Car Company, Incorporated, employer, and the Century Indemnity Company, insurer. From a decision of the Industrial Accident Commission denying compensation, J. Elvin Unger, executor of claimant's last will and testament, appealed to the circuit court, which rendered judgment on a verdict for the executor, and the employer and insurer appeal.

Affirmed.

Roszel C. Thomsen, of Baltimore (Walter L. Clark, of Baltimore, and John Wagaman, of Hagerstown, on the brief), for appellants.

J Lloyd Harshman and Robert H. McCauley, both of Hagerstown, for appellee.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

ADKINS Judge.

On February 18, 1932, Alice C. Wolf filed with the Industrial Accident Commission her claim for compensation as a total dependent of her deceased husband, William F. Wolf, which was heard by the commission on June 16, 1932, and disallowed on December 23, 1932. On January 10, 1933, Mrs. Wolf died before taking an appeal from said decision. On January 18, 1933, her executor, the appellee herein, appealed to the circuit court for Washington county, where the appeal was tried on March 10, 1933, resulting in a reversal of the decision of the commission. The only compensation sought was for the period between the date of the death of Mr. Wolf and the date of the death of Mrs. Wolf.

The jury found on the only issue submitted that the death of Wolf was caused by the injury which he received on October 20, 1931, while in the employ of the M. P. Moller Motor Car Company, Incorporated. This appeal is from the judgment on that verdict.

William F. Wolf, aged 71, was a foreman in the plant of the appellant. On October 20, 1931, while engaged in his usual work, he was injured by an iron clamp falling a distance of about five feet six inches and striking him on the left side of his head inflicting a wound about an inch long. It was dressed by a doctor and he returned to work, continuing in his employment until November 18th, although within about a week he began to have trouble with his speech, and his walk became unsteady and he dragged one leg. He stopped work on November 18th, and on the last day of the month took to his bed, where he was confined until the day of his death, January 29, 1932, getting worse all the time. Theodore Cooper, who was working with Wolf at the time of the accident, testified as to how it happened, giving the position of Wolf under the screen at the time of the accident, the height of the screen, and the weight of the clamp, and describing the injury. Lambert B. McKee also described the screen and the position of the clamp on the screen and the wound. He was not present at the time of the accident, but, without objection, he testified that after the wound was dressed Wolf told him that the clamp fell off the screen and struck him on the head. This witness further testified that within a week or ten days he noticed the impediment in Wolf's speech which had not been there before the accident during the six years witness had worked in the plant as Wolf's assistant; that Wolf's physical condition during that time was very good; that he was a very active man, never losing any time except once when he had a touch of the flu one winter. His widow testified that prior to the accident he had good health, had not been sick for a long time. His attending physician, Dr. W. D. Campbell, testified that he made his first examination on November 30th; that he saw the patient twice the first day and daily for the rest of the week and then less frequently until he got very ill, and he saw him twice a day just before his death; that he attended him for a minor injury to his finger some years ago, some months preceding his last illness; that he did not know anything about the state of his health prior to the time of the accident; that he had no occasion to attend him; that when he was first called in on the case, Mr. Wolf let him in, and when witness asked him some questions, he was unable to give him an answer; that he apparently understood what was asked him but was not able to answer the questions, and he seemed to have a little dragging of the right foot at the time; that he gradually grew worse, and although there were times when he seemed a little better, he made no permanent improvement and he developed paralysis of the right side, arm and leg; that he also had some disturbance of the bladder and bowels. The witness said he had heard the testimony and was asked, without objection, what, in his opinion, assuming the truth of the testimony, would be the cause of the illness of Wolf as witness found it as the result of his examination made in November, and in his attendance on him the week following; and his answer was, "Cerebral hemorrhage." Dr. Wroth testified that when he examined him some time in December, there was weakness of both the right arm and right leg, and he could not walk without material assistance; that his blood pressure was not elevated, and his blood vessels were not particularly thickened or tortuous.

At the opening of the case in the trial court, the employer and insurer moved the court to dismiss the appeal on the ground "that the appellant is not such a person as is entitled under the laws of Maryland to institute or prosecute said appeal," which motion was overruled. This ruling was the subject of the first exception. The motion was based on the following provision of section 36 of article 101 of the Code: "The right to any compensation payable to any dependent and unpaid at the date of death of any such dependent shall survive to and be vested in the surviving dependents as the Commission may determine, if there be such surviving dependents, and if there be none such, then the compensation shall cease."

To give the statute the meaning contended for by the appellants, that is, to construe it literally, would mean that an employer could enrich himself, by delaying the determination of his liability as long as possible, if the dependent should die pending the litigation; or even worse, he would gain by the death of a dependent while he was unjustly withholding a payment which had become due, if there were no surviving dependents. This we feel sure was not the intent of the Legislature. Nor could it have been the policy of the Legislature to deprive a dependent of credit for necessaries pending the determination of her claim. It seems to us obvious that "unpaid" in the statute means "unaccrued," and that what the Legislature had in mind was the weekly installments allowed a dependent over a period of years, as in the case of Cambridge Mfg. Co. v. Johnson, 160 Md. 248, 153 A. 283, where it was held the administratrix of a deceased employee was entitled to collect that portion which the decedent would have been entitled to collect up to the time of his death. The motion was properly overruled.

We find no error in the ruling which was the subject of the second exception. This exception was to permitting to be read to the jury the proof of death signed by the physician and contained in the record from the commission. The jury were entitled to be informed of the record. It amounted to no more than reading to the jury the declaration in a suit at law.

The third, fourth, fifth, sixth, and seventh exceptions are considered together in appellants' brief. The objection urged is that the testimony in these exceptions was as to the cause of Wolf's condition some time prior to his death and confused the cause of his illness at that time with the cause of his death. Appellants contend that there was no evidence in the case linking the accident or the trouble which followed it with the cerebral hemorrhage which caused his death. In our opinion the objection is not well taken. Dr. Campbell, the witness to whom these...