Mayor and City Council of Baltimore v. Trunk

• Decision Date: 17 March 1937
• Docket Number: 6.
• Citation: Mayor and City Council of Baltimore v. Trunk, 172 Md. 35, 190 A. 756 (Md. 1937)
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. TRUNK.
• Court: Maryland Court of Appeals

190 A. 756

172 Md. 35

MAYOR AND CITY COUNCIL OF BALTIMORE v. TRUNK.

No. 6.

Court of Appeals of Maryland

March 17, 1937

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

Proceeding under the Workmen's Compensation Act by Martha A. Trunk for the death of Paul A. Trunk, her husband, claimant opposed by the Mayor and City Council of Baltimore, employer and self-insurer. From a judgment of the Superior Court reversing an order of the State Industrial Accident Commission dissallowing the claim, the employer appeals.

Reversed.

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

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

Avrum K. Rifman, of Baltimore (David L. Morrison, of Baltimore, on the brief), for appellee.

PARKE Judge.

The Mayor and City Council of Baltimore, a municipal corporation, owns, operates, and maintains the Baltimore City Hospital, a public charity, which renders free medical and hospital service to the poor of the city and furnishes a home for such as are aged and indigent. In this institution Paul A. Trunk was employed as a head orderly from 1929 until his physical condition compelled him to retire on October 27, 1933. He was subject to the orders of the head nurse and those of the superintendent. His regular work included, when he was not engaged in the supervision of the other orderlies, cleaning the floors and walls, taking care of patients, assisting the nurses in taking temperatures, and doing other personal work in connection with the patients, and the manual labor of his position. He would, if required, empty waste baskets, move beds and lockers, and do the heavy work on the wards and in the corridors and the general office cleaning, except scrubbing.

While so employed and during a period of his service, he, with another employee, was engaged in moving a heavy steel locker when the door of the locker flew open and struck his back below the right shoulder blade and near the spinal column. There is expert testimony to the effect that his death some fifteen months later was caused by a malignant lung condition which had developed as a consequence of the blow so inflicted. The employee's wife is his sole dependent, and she filed a claim for compensation under article 101, section 35 of the Code (1935). The State Industrial Accident Commission first allowed, and then on a rehearing disallowed, the claim. On an appeal, the commission was reversed, and from its order the employer has appealed.

There can be no controversy that the injury suffered was accidental and was sustained in the course of his employment. This much is patent and is not disputed. Three questions, however, are raised by the action of the court on the prayers. It is not enough that the injury be accidental and be suffered in the course of the servant's employment by his master, since for the award of compensation the statute further requires, as defined and contemplated by its terms, a workman, an employer and an extra-hazardous employment. The contention is made that the husband of the claimant was an orderly, who was the head orderly of his group, at a wage of $1,200 a year, payable in installments of $50 every half month, and, so, was not a workman for wages within the meaning of the enactment.

A hospital orderly is primarily a male attendant in a hospital who is charged with the maintenance of order and cleanliness, and of giving menial service and personal attention. If one of the class be placed in a supervisory position with respect to the others of the class, but remain obliged to perform the common services of the class whenever so directed by his employer or whenever an occasion for any of such services to be discharged would arise, he cannot be said to be other than an orderly. It certainly may not be successfully maintained that his position as head orderly will take him out of the operation of the statute when his duties are servile and not professional, and, particularly, when his injury was sustained in an accident which happened while he was engaged in manual labor within the ordinary duties of an orderly. The testimony is clear that the essential nature and quality of the employment was not affected by his position as head orderly which differentiated him from the other orderlies in degree but not in kind.

Since a head orderly must be held a workman, the second question is whether or not he was a workman who was engaged in an extrahazardous employment. The nature of the employment must be determined by the nature of the work or occupation and where the work or occupation of the employee may be partly hazardous and partly nonhazardous, an injured employee would be regarded as being engaged in an extrahazardous employment if the injury he received were suffered in connection with the extrahazardous employment of the employee. Griffin v. Cruikshank Co., 253 N.Y. 303, 171 N.E. 64; Id., 254 N.Y. 505, 173 N.E. 841; Mulford v. A. S. Pettit & Sons, 220 N.Y. 540, 116 N.E. 344.

The existing provision of the Workmen's Compensation statute is that: "Whenever the State, county, city or any municipality shall engage in any extra-hazardous work, within the meaning of this Article, whether for pecuniary gain or otherwise, in which workmen are employed for wages, this Article shall be applicable thereto." Code, § 35 of article 101.

The further enactment that the officers of the Maryland State Police Force and the guards employed by the penal institutions of the state shall be deemed workmen for wages within the meaning of the section does not affect the problem at bar nor is there any contention that the city is taken out of the operation of the act because it has made equal or better provision for its municipal employees than is given by the workmen's compensation statute. So, which of the many forms of work in which the workmen of a municipality may be employed for wages are extra-hazardous within the purview of the law must be ascertained by reference to the definition of that term by the statute. In section 65, subdivision (1) of the article, the term "extra-hazardous employment" is declared to mean a work or occupation described in section 32 which is composed of 46 subdivisions. The concluding or forty-sixth subdivision declares that, in addition to the employments theretofore listed, the "Article is intended to apply to all extra hazardous employments not specifically enumerated herein, and to all work of an extra hazardous nature."

The method to be employed in the determination of the meaning of this forty-sixth subdivision and of what are the essentials for an employment to be embraced within its scope has been considered by this court in former decisions. In Beasman & Co. v. Butler (1918) 133 Md. 382, 387, 105 A. 409, the claimant was not brought within the specific classes of employments which...