Savage Mfg. Co. v. Magne

• Decision Date: 08 December 1927
• Docket Number: 40.
• Citation: 139 A. 570,154 Md. 46
• Parties: SAVAGE MFG. CO. ET AL. v. MAGNE.
• Court: Maryland Court of Appeals

139 A. 570

154 Md. 46

SAVAGE MFG. CO. ET AL. v. MAGNE.

No. 40.

Court of Appeals of Maryland

December 8, 1927

Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr. Judge.

"To be officially reported."

Proceeding under the Workmen's Compensation Act by Sarah Frances Magne, claimant, for personal injuries, opposed by the Savage Manufacturing Company, employer, and the American Mutual Liability Insurance Company, insurer. An order of the State Industrial Accident Commission granting an award was affirmed by the circuit court, and defendants appeal. Affirmed.

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

Roszel C. Thomsen, of Baltimore (Walter L. Clark, of Baltimore, and James Clark, of Ellicott City, on the brief), for appellants.

Ogle Marbury, of Baltimore, for appellee.

URNER J.

It is undisputed that the appellee sustained an accidental injury arising out of and in the course of her employment by the Savage Manufacturing Company, one of the appellants. While being conveyed from the company's plant in its truck provided regularly for the transportation of its employees under the terms of their employment, the appellee fell from the truck, and injured her right knee. Subsequently she was forced to give up her work as a floor sweeper in the company's factory, because of arthritis in her right limb, which has been attributed, by her physician, by the State Industrial Accident Commission, and by a jury in the circuit court for Howard county, to the accidental injury just described. The questions we are to determine, on this appeal from a judgment of the court below affirming the award of compensation made by the commission, are raised by 38 exceptions which were taken by the employer and the insurer to rulings of the trial court on the form of the issues, the admissibility of evidence, and numerous proposals for instructions to the jury.

At the request of the employer and insurer, the court granted the following issues:

"(1) Did the claimant receive, on or about January 12, 1926, an accidental injury arising out of and in the course of her employment by the Savage Manufacturing Company?

(2) Did the claimant fail to notify her employer of the alleged accident within ten days thereof?

(3) If the jury shall answer the second issue in the affirmative, were the employer and the insurance carrier prejudiced by the failure of the claimant to notify her employer of the alleged accident within ten days thereof?

(4) Did the claimant fail to file her claim within 30 days after the beginning of her disability for which compensation was claimed?

(5) If the jury shall answer the fourth issue in the affirmative, were the employer and the insurance carrier prejudiced by the failure of the claimant to file her claims within 30 days after the beginning of her disability?"

"(7) Has the claimant ever been totally disabled as a result of the alleged injury occurring on or about January 12, 1926?"

The sixth issue, as framed and proposed by the employer and insurer, was as follows:

"Has the claimant lost the use of her right leg, or of any part thereof, as a result of the alleged accident occurring on or about January 12, 1926?"

The court refused that issue, but substituted one in the following form:

"Was the claimant's right leg or any part thereof injured by the alleged accident occurring on or about January 12, 1926?"

An issue designated 6A, offered by the employer and insurer, was refused. It was in these words:

"If the jury shall answer issue No. 6 in the affirmative, of what fractional part of her right leg has she lost the use?"

The eighth issue submitted by the same parties was also rejected. Referring to the date of the commission's award, it inquired:

"Had the claimant on November 24, 1926, any disability as a result of the alleged accident occurring on or about January 12, 1926, except the total or partial loss of the use of her right leg?"

Because of the court's modification of the sixth issue, and its rejection of the issues numbered 6A and 8, the first four exceptions in the record were noted.

The jury answered the first, fourth, sixth, and seventh issues in the affirmative, and the second, third, and fifth issues in the negative. It was thus determined that the claimant, on or about January 12, 1926, received an accidental injury arising out of and in the course of her employment; that she did not fail to notify her employer of the accident within 10 days after it happened; that she failed to file her claim within 30 days after the beginning of her disability; that the employer and insurer were not prejudiced by such delay in filing her claim; that the claimant's right leg was injured by the accident; and that she has been thereby totally disabled. In view of those findings of fact, it is evident that the refusal of the court to submit the additional issues suggested by the appellants had no prejudicial effect upon their defense. The only injury alleged to have resulted from the accident was that suffered by the claimant in her right leg, and, as the jury found that such an injury was received, and that it produced total disability, it would have been suprefluous to require them to answer further inquiries as to whether the claimant lost the use of her right leg, and what fractional part of its use was lost, and as to whether any other disability resulted. The loss by the claimant of the use of her right leg wholly incapacitated her for the work to which she was accustomed and for which she was qualified. It was with such a disability that the granted issues were concerned, and they adequately presented the essential questions of fact to be decided.

The fifth, sixth, eleventh, twenty-first, twenty-fourth, twenty-fifth, and twenty-eighth exceptions were reserved because the claimant was allowed to introduce the testimony taken at the hearing before the State Industrial Accident Commission. The stated grounds of the objection were that the witnesses who testified before the commission were within the jurisdiction of the court, and that the introduction of their testimony, through the medium of the record transmitted from the commission, was not consistent with the Workmen's Compensation Act (Code Pub. Gen. Laws 1924, art. 101) and pertinent rulings of the Court of Appeals. It has been the common practice to read as evidence, on trials of appeals from the commission, the testimony taken before it as duly authenticated in the transmitted record of its proceedings. This was the course pursued in most, if not all, of the numerous workmen's compensation cases which have reached this court on final appeal. For the first time a question is formally raised as to the propriety of such a practice.

It has been held that testimony supplementing that heard by...