Pennsylvania R. Co. v. Stallings

• Decision Date: 11 January 1934
• Docket Number: 66.
• Citation: 170 A. 163,165 Md. 615
• Parties: PENNSYLVANIA R. CO. v. STALLINGS.
• Court: Maryland Court of Appeals

170 A. 163

165 Md. 615

PENNSYLVANIA R. CO. v. STALLINGS.

No. 66.

Court of Appeals of Maryland

January 11, 1934

Appeal from Superior Court of Baltimore City; Eli Frank, Judge.

Proceeding under the Workmen's Compensation Act by Fannie L Stallings, widow and claimant, for the death of her husband opposed by the Pennsylvania Railroad Company, employer. From a judgment of the superior court reversing the finding of the Industrial Accident Commission disallowing a claim for death benefits to claimant, the employer appeals.

Affirmed.

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

Charles T. LeViness, 3d, of Baltimore (Adams & Hargest, of Baltimore on the brief), for appellant.

H Harry Rosenberg, of Baltimore, for appellee.

ADKINS Judge.

This appeal is from a judgment of the superior court of Baltimore city reversing the finding of the State Industrial Accident Commission disallowing a claim for death benefits under the Workmen's Compensation Law.

The claimant is the widow of Harry C. Stallings. He was a car inspector employed by the Pennsylvania Railroad Company at Canton Yards in Baltimore city. The only issue submitted to the jury was: "Was Harry C. Stallings, now deceased, engaged in interstate commerce at the time of his injury on February 11th, 1931?"

It does not appear from the record that any one saw the accident. The evidence of it consists of statements made by Stallings to his wife and to William V. Miller, assistant yardman of the railroad company. While at the hospital he told Miller that he fell while examining the roof of a car at 8:25 in the morning, which he said was the second car from the upper end of track No. 6. Miller testified that he went to that car and got the number, 52208. This examination could not have been before the afternoon of the day of the accident, as he did not see Stallings until the afternoon or evening. The witness said this car was loaded with feed and was consigned to Lancaster, Pa., but did not know to whom; that he obtained information as to the loading and destination of the car from the agent at Canton; "I went to the agent's office and determined this from the billings;" that there were twenty-one cars in this train; that it is the custom to inspect cars before they are loaded; that there was no particular reason to inspect the car after it was loaded; that at 8:25 in the morning the cars on No. 6 track would be inbound cars. The head bill clerk at the request of the defendant produced a list of cars that were loaded and forwarded on February 11, 1931, which does not contain a car numbered 52208; he said that car was an outbound car and had been previously loaded; that he knew this from the records of the company. But he did not produce any record of that car. On cross-examination he was asked if he referred to the records to ascertain with what car No. 52208 was loaded and its destination, and his answer was, "I haven't got the records with me." Question: "Did you examine the records?" Answer: "Of this particular car, No, Sir." The only question raised by this appeal is the correctness of the ruling of the trial court in refusing defendant's three demurrer prayers, A, B, and C. Prayer A asked for an instruction "that the uncontradicted evidence in this case is that the injured employé at the time of his injury was engaged in interstate commerce, and, therefore, the answer of the jury to the issue must be yes." Prayer B asked for a directed verdict on the ground that there was no legally sufficient evidence to show that he was not engaged in interstate commerce. Prayer C was practically the same as prayer B.

The court granted several prayers at the instance of the defendant upon which it is not necessary for us to pass.

We find no error in the refusal of the demurrer prayers.

It is stated by appellant in its brief that the general nature of Stalling's work the day of his injury was the inspection of cars loaded and consigned for interstate shipment, but there is not a particle of evidence in the record to support this statement, even if that would have been conclusive, which we do not decide. The particular car which it was said he was inspecting was not in the list of cars with out of state designation, and there is no evidence that he inspected any of them. The only evidence as to his employment on the day of the accident was in connection with car No. 52208. Appellant also contends that the evidence of decedent's employment in inspecting a car designated for interstate commerce was uncontradicted; that the burden of proof was upon claimant to show that decedent was not engaged in interstate commerce, and therefore the case should have been withdrawn from the jury.

Section 64 of article 101 of the Code provides that, in any proceeding for the enforcement of a claim for compensation, it shall be presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provision of the article. In Schneider's Workmen's Compensation Law (2d Ed.) vol. 2, § 537, it is said: "The burden of proving that the claimant was engaged in interstate commerce at the time of the accident rests upon the employer, when he seeks to defeat a claim for compensation on this ground." To the same effect, see Atchison, Topeka & Santa Fé Railway Co. v. Industrial Commission, 290 Ill. 590, 593, 125 N.E. 380; Knorr v. Central R. Co. of N. J., 268 Pa. 172, 176, 110 A. 797 (in which cases writs of certiorari were denied by the Supreme Court in 252 U.S. 583, 40 S.Ct. 393, 64 L.Ed. 728, and 254 U.S. 644, 41 S.Ct. 15, 65 L.Ed. 454, respectively); Okrzesz v. Lehigh Valley R. Co., 170 A.D. 15, 155 N.Y.S. 919.

And since Acts 1931, c. 406, it cannot be said that the burden of proof is shifted on appeal from the commission. The burden is still upon the appellant to show that the commission has erred. But, as we said in Schemmel v. T. B. Gatch & Sons Contracting & Building Co....