Old v. Cooney Detective Agency

• Decision Date: 27 February 1958
• Docket Number: No. 126,126
• Citation: 215 Md. 517,138 A.2d 889
• Parties: Mary A. OLD, Widow of Harry Old, Deceased, Claimant, v. COONEY DETECTIVE AGENCY, Employer and State Accident Fund, Insurer.
• Court: Maryland Court of Appeals

Page 517

215 Md. 517

138 A.2d 889

Mary A. OLD, Widow of Harry Old, Deceased, Claimant, v. COONEY DETECTIVE AGENCY, Employer and State Accident Fund, Insurer.

No. 126.

Court of Appeals of Maryland.

Feb. 27, 1958.

Walter R. Tabler, Baltimore, for appellant.

J. Howard Holzer, Sp. Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., U. Theodore Hayes and Ernest N. Cory, Jr., Sp. Asst. Attys. Gen., on the brief), for appellee.

Before BRUNE, C. J., HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

The State Industrial Accident Commission disallowed a widow's claim for compensation benefits for the death of her husband. At the conclusion of the testimony on appeal to the Superior Court of Baltimore, the trial judge directed a verdict for the employer. In her appeal, the widow argues that it was error for the lower court, after permitting the case to be tried on one issue, (a) to withdraw it and substitute another issue in its place, and (b) to instruct the jury to answer the new issue adversely to the widow.

Rule 633 of the Rules of the Supreme Bench of Baltimore City provides that appellant and appellee, within specified times after the record has been filed, shall submit proposed issues and exceptions to the issues of the other, and that any exceptions filed shall stand for hearing on the next law day. The rule then provides that 'The case shall be set for trial promptly after disposition of all exceptions' and that if no issues are filed within the time allowed, the court may itself frame issues or pass any other order which it deems appropriate. The widow filed a proposed issue in due time, and the employer excepted and submitted a proposed issue. Judge Allen granted the widow's issue, to wit: 'Was the death of Harry Old in any way contributed to or hastened by his accidental injury of February 20, 1953, or the results of said accidental injury?' When the case came on for trial, counsel for the employer told the court that Judge Allen had overruled its issue--viz., 'Was the death of Harry E. Old the result of an accidental injury which arose out of and in the course of his employment * * *?' and substituted the widow's issue. At that point counsel for the claimant said that Judge Allen had not ruled on the employer's issue 'to the point of excluding it, but that his ruling had merely held the issue proposed on behalf of the claimant was a proper one.' The trial court stated that he felt obligated to honor Judge Allen's ruling but that after all the testimony was in, if he disagreed with the ruling, he would 'have a right either to accept the issue as framed by the claimant or as submitted by the employer and the insurer, or frame my own * * *.' No objections or exceptions were taken to the statement or to the proposed course of action of the trial court.

We think the appellant correct in her contention that issues should be framed before the case goes to trial and that each side must have an opportunity to prepare his case in the light of the issues that have been approved by the court. Here, however, the appellant went to trial knowing that the employer's issue might be submitted to the jury at the conclusion of the testimony, and made no objection. We find it unnecessary to rule on the point, because we think that the trial court erred in directing a verdict on the employer's issue and that the case should have gone to the jury on that issue with appropriate instructions as to the matters which the jury should take into account in reaching a decision.

The record shows that Harry Old was an employee of the Cooney Detective Agency. On February 20, 1953, while working as a special guard, he fell six feet from a box onto a stone floor and sustained rather severe injuries to his face, suffering a fracture of the right zygomatic arch and malar bone extending into the right antrum, with bleeding in the antrum. As a result of the fractures, it was necessary to remove some of his teeth. The testimony leaves no doubt that his physical condition declined steadily and markedly from the date of his accident. The record also established that he was suffering from chronic arteriosclerotic hypertension at the time of the accident, and that four months later he suffered a stroke, resulting in paralysis of the left side. It was necessary for him to be in the hospital for some time.

On September 28, 1954, the Commission awarded him permanent total disability benefits that reflected its determination that 70% of his disability was due to the accidental injury and 30% to a preexisting disease or infirmity. His physical decline continued steadily and on October 8, 1955, he died of cancer of the bladder with generalized metastasis. The controversy which we are asked to decide is, as it was before the Commission and the trial court, whether there was a causal connection between the accidental injury of 1953 and its sequelae, and the death, which admittedly was caused by cancer.

The parties differ as to whether Old had cancer prior to the accident in 1953. The trial court seemingly acted on the assumption that there was no evidence that cancer existed at the time of the accident, and the appellees argue earnestly that this was correct. The evidence that Old had cancer prior to 1953 was contained in hospital records of St. Joseph's Hospital. Mrs. Old produced Dr. Oscar B. Camp, a surgeon certified by the American Board of Surgery, who testified that in his professional opinion Old's physical, nutritional and metabolic condition deteriorated steadily as a result of the accident, and that this deterioration and the fact that his defense mechanisms had become weakened and debilitated caused him to die from the ravages of cancer sooner than he would have died except for the accident. He could not say that the accident was the immediate cause of death or of the cancer, nor of his own knowledge whether the cancer began before or after the accident. His testimony may be summarized in a colloquy of counsel--the widow's lawyer said that what he had asked was: 'did the injury and its sequelae and the things that came about as a result of his injury hasten his death in the doctor's opinion', to which the lawyer for the employer replied: 'The answer is yes.'

The appellees concede that the law is that 'an aggravation or acceleration of a preexisting disease or infirmity is ordinarily compensable under the Maryland Act' but they go on to say: 'The claimant, however, failed to meet the test of producing legally sufficient evidence of a preexisting disease or infirmity.'

The evidence as to the existence of cancer at the time of the accident is thin. In the St. Joseph's Hospital record of February 18, 1955, is a statement by Dr. J. H. Mennings that Old had shown symptoms of cancer of the bladder over the period of the previous six months. The record of the same hospital for the visit of October 1955 recites that Old entered the hospital complaining of 'localized hypergasia of about 3 years' duration, with distrubances of micturition', and also that he had 'complained of severe pain localized over the bladder area for about three and a half years.' The doctor for the insured admitted that this pain 'possibly could be due to cancer.' The October 1955 history, prepared by a physician also said that 'Carcinoma of the bladder was diagnosed about three and one half years ago.' The source of this statement is not indicated, but evidently the doctor writing the history found it credible and significant.

Hospital records are admissible under Code 1951, Art. 35, Sec. 68. This is not to say that everything in the record is admissible. In Globe Indemnity Co. of New York v. Reinhart, 152 Md. 439, 447, 451, 137 A. 43, 46, before the passage of the statute, this Court held a hospital record to be admissible despite the hearsay rule, because it is made by one whose duty it is to correctly make the entries and long experience had shown that the physician is fully warranted in depending upon the reliability and trustworthiness of such a record. It added that: 'It is difficult to conceive why this record should not be reliable. There is no motive for the person whose duty it is to make the entries, to do other than record them correctly and accurately' and, as reassurance, pointed out that not necessarily would all of the record be proper evidence, saying: '* * * if its contents upon examination would be open to other objections, such as immateriality, irrelevancy, or that it was an expression of opinion by persons not competent to express an opinion, those objections are not precluded by what we have here said.' In Scott v. James Gibbons Co., 192 Md. 319, 330, 64 A.2d 117, 122, the Court said of hospital records admitted over objection: 'Of course such records are admissible, and statements therein showing the history of the patient's physical condition are proper. History in this connection means the physical background as well as the present condition of the patient. It is proper for the record to show the patient was hurt in an automobile accident, but the particulars of such accident, contained in a hospital record, should be deleted and not submitted to a jury in a case like this. This is hearsay.'

Some Courts have limited the admissibility of statements in hospital histories to a greater extent than has this Court, saying they were hearsay on hearsay, or that the maker of the record was incompetent. This Court has gone far in admitting the particulars set forth in the history of a patient in a hospital record. In Bethlehem-Sparrows Point Shipyard v. Scherpenisse, 187 Md. 375, 381, 50 A.2d 256, 260, we said: '* * * This Court holds that a hospital record containing the history of a patient's case is admissible in evidence, whether or not the statements therein were made by the patient himself' In the Scherpenisse case the part of the hospital record objected to was: 'Patient cut left foot and developed an infection involving...