Mayor and City Council of Baltimore v. Perticone

• Decision Date: 13 January 1937
• Docket Number: No. 40.,40.
• Citation: 188 A. 797
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. PERTICONE.
• Court: Maryland Court of Appeals

188 A. 797

MAYOR AND CITY COUNCIL OF BALTIMORE

v. PERTICONE.

No. 40.

Court of Appeals of Maryland.

Jan. 13, 1937.

Appeal from Superior Court of Baltimore City; Samuel K. Dennis, Judge.

Proceeding under the Workmen's Compensation Act by Amil Perticone, claimant, opposed by the Mayor and City Council of Baltimore, employer and self-insurer. From a judgment reversing a decision of the State Industrial Accident Commission which denied the claim, the employer and self-insurer appeal.

Reversed and remanded for new trial.

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

M. Henry Goldstone and J. Francis Ireton, Asst. City Sols., both of Baltimore (R. E. Lee Marshall, City Sol, of Baltimore, on the brief), for appellant.

Paul Berman and Harry K. Lott, both of Baltimore (Louis Silberstein and Silberstein & Lott, all of Baltimore, on the brief), for appellee.

JOHNSON, Judge.

This is an appeal from a judgment of the superior court of Baltimore City on the verdict of a jury reversing a decision of the State Industrial Accident Commission, by which the claim of Amil Perticone, employee, against the Mayor and City Council of Baltimore, employer and self-insurer, for compensation was disallowed. The claim in question arose upon employee's contention that on May 13, 1935, he sustained an accidental personal injury arising out of and in the course of his employment by appellant while working as a laborer in its water department and assisting in pulling a meter vault from the ground on Eierman avenue, at which time, while standing upon the curb near the vault and assisting others in pulling it from the ground, his foot slipped, and he immediately felt a sharp pain in his stomach. This, he stated, happened about 2:30 in the afternoon, but he made no statement to his fellow workmen or to the foreman of the gang concerning it, and continued working with them for an hour thereafter, when the job was finished. He then got into the truck with other workmen, and after riding some distance, took a street car for his home, where upon arrival he was nauseated, able to eat but little, none of which he retained; that shortly after arrival at his home he noticed one lump on either side of his stomach, although previous to this time he had never had hernia and had never worn a truss. On the following day he went to the Union Memorial Hospital, but stated that as he had no money he did not tell them he had any work, nor that he sustained the injury while working. Getting no treatment there, he next went to the Supervisor of City Charities, where he secured a pass which admitted him to the City Hospitals, and on the following day underwent an operation for inguinal hernia. He left the hospital on the last day of the month, and on June 13 following filed claim for compensation, which was subsequently heard by the commission claimant and employer both being present and participating, on nine issues as follows:

(1) Whether he sustained an accidental personal injury arising out of and in the course of his employment by appellant.

(2) Nature and extent of disability. (3) Average weekly wage. (4) Whether he gave notice to his employer of his injury within the time prescribed by law. (5) Whether he filed his claim within the time prescribed by law. (6) Did the hernia appear suddenly? (7) Was it accompanied by pain? (8) Did it immediately follow his injury? And (9) did it exist prior to the injury?

The commission found for employer on the first, sixth, seventh, and eighth issues, and as to the third issue found his average weekly wage was $14.07, on the fourth issue that the claimant did give notice to his employer of his alleged accidental injury within the time prescribed by law, and likewise found for the claimant on the fifth issue, but as to the ninth issue found that the hernia existed prior to the alleged accidental injury. The second issue was, therefore, not passed upon. The commission accordingly disallowed the claim, and from this action Perticone appealed to the superior court of Baltimore City, where the case was tried before a jury on eight issues, which for convenience are designated as follows:

(1) Did the claimant sustain an accidental personal injury arising out of and in the course of his employment on May 13, 1935, causing hernia? (2) Did the claimant report his injury to his employer within 48 hours next following its occurrence?

(3) Did the inguinal hernia exist prior to the alleged accidental injury of May 13, 1935? (4) Did the Compensation Commission excuse claimant for his failure to file his application and the report of his attending physician within thirty days after the beginning of his disability for which compensation is claimed? (5) Did the hernia appear suddenly? (6) Was the hernia accompanied by pain? (7) Did the hernia immediately follow such injury? (8) Did the hernia exist prior to the injury for which compensation is claimed?

The jury's answer to the first, fifth, sixth, and seventh issues was "yes," while its answer to the third and eighth issues was "no." It also under instruction of the court answered the second issue "yes." By granting claimant's B and C prayers, the fourth issue was withdrawn from the jury's consideration for the reason that employer not having raised the question of prejudice before the commission could not raise it on appeal.

The first of appellant's exceptions relates to the court's action in permitting appellee, after he himself had given oral testimony concerning the injury for which he claimed compensation, to introduce, by reading from the transcript made before the commission, the testimony there given by one of his witnesses, the ground for the exception being that claimant must on appeal rely entirely on oral testimony or entirely upon that contained in the transcript made before the commission; but we consider this contention untanable, since chapter 545 of the Acts of 1935 amending and reenacting section 56 of article 101 no longer required the court on appeal to confine its consideration of the case to the record made before the commission, and in this respect restored article 56 to the status it occupied prior to its amendment by chapter 406 of the Acts of 1931. The effect of this legislation was to restore to litigants the right on appeal to have some witnesses give oral testimony and introduce the testimony of others by reading from the transcript made before the commission, which right they enjoyed prior to the 1931 amendment. Harvey v. Roche & Son, 148 Md. 363, 366, 129 A. 359; Savage Mfg. Co. v. Magne, 154 Md. 46, 139 A. 570.

We now come to the second exception which relates to the rulings upon the prayers, of which appellee offered four, numbered "Claimant's" A, B, C, and First prayer which were granted, while appellant offered eleven-numbered "City's" A, B, C, D, E, and 1, 2, 3, 4, 5, and 6, of which No. 1 was granted, and the remainder refused. City's A prayer was a general demurrer to the evidence, and from the testimony of the plaintiff previously quoted, to say nothing of that of his other witnesses, was properly rejected, unless it can be said that there was no evidence in the case from which a rational inference could be drawn by the jury that claimant reported his accidental injury within the time prescribed by law following its occurrence. Appellant and appellee, as well as the State Industrial Accident Commission and the superior court, treated this requirement of notice as being applicable to the forty-eight hour limitation prescribed by section 36 of article 101 of the Code, as amended by chapter 363 of the Acts of 1931, which provision was admittedly in effect at the time appellee claimed to have sustained his accidental injury; and since under the great weight of authority such a statute is generally held to be one of limitation, an amendment to which is not construed so as to effect causes of action already barred and thus revive a lost right of action (Vol. 37 C.J. page 697, § 14; Dyer v. Belfast, 88 Me. 140, 33 A. 790; Garfield v. Bemis, 2 Allen [Mass.] 445; Denny v. Bean, 51 Or. 180, 93 P. 693, 94 P. 503), we feel this interpretation to be correct and will, therefore, consider the forty-eight hour period as applicable in this case. The same statute was first considered by this court in Lloyd v. Webster, 165 Md. 574, 169 A. 202, and it was there held that failure to report within forty-eight hours an injury which caused hernia precluded an award of compensation. That case is ample authority for the proposition that notice of the injury must be given within the prescribed period, and it has been held that the purpose of such notice is to enable the employer to have the benefit of an early investigation of the circumstances surrounding the alleged accident. Dorb v. Frederick Stearns & Co. et al., 180 App.Div. 138, 167 N.Y.S. 415, 1 W.C.L.J. 227 (N.Y.); Whitmyre v. International B. M. Corporation, 267 N. Y. 28, 30, 195 N.E. 539; Northeast Coal Co. et al. v. Castle, 202 Ky. 505, 260 S. W. 336. The statute in question prescribes no particular form of notice, and in this respect is similar to the Texas statute which has been...