Schemmel v. T. B. Gatch & Sons Contracting & Bldg. Co.

Citation166 A. 39
Decision Date21 April 1933
Docket NumberNo. 10.,10.
PartiesSCHEMMEL v. T. B. GATCH & SONS CONTRACTING & BUILDING CO. et al.
CourtCourt of Appeals of Maryland

Appeal from Circuit Court, Baltimore County; C. Gus Grason, Judge.

Proceeding under the Workmen's Compensation Act by Charles A. Schemmel, employee, opposed by the T. B. Gatch & Sons Contracting & Building Company, employer, and the New Amsterdam Casualty Company, insurer. From a disallowance of the claim, claimant appeals.

Reversed and remanded.

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

Philander B. Briscoe, of Baltimore (Briscoe & Jones, of Baltimore, on the brief), for appellant.

George E. Kieffner and Thomas M. Jacobs, both of Baltimore (Stewart, Pearre & Kieffner, of Baltimore, on the brief), for appellees.

OFFUTT, Judge.

Charles A. Schemmel, on July 1, 1931, while engaged in the performance of his duties as a foreman for T. B. Gatch & Sons in the operation of their "Bush" quarry near Churchville in Harford county, Md., suffered a cerebral hemorrhage which caused a disability which, while uncertain in its Ultimate duration and extent, was at least temporarily total.

On August 22, 1931, he filed with the State Industrial Accident Commission a claim for compensation on the ground that his inInjury was accidental and arose out of and in the course of his employment. The claim was contested, and, after a hearing and evidence, the commission found that the claimant did not suffer an accidental injury arising out of and in the course of his employment, and disallowed the claim. From that order the claimant appealed to the circuit court for Baltimore county, where, after a trial, a directed verdict was entered in favor of the employer, and the New Amsterdam Casualty Company, the insurer, and against the claimant. This appeal is from the judgment on that verdict.

The single question which it submits for review is whether the evidence in the case was legally sufficient to permit a rational inference that the injury of which he complains was accidental in its nature, and whether it arose out of and in the course of the employment in which Schemmel was engaged at the time it occurred.

The consideration of that question is affected by two rules—one statutory, that the decision of the commission is prima facie correct, and the burden of proof is upon the party attacking the same, Code, art. 101, § 56; and the other dialectical, that one who denies that given facts will support a particular inference for that question concedes that the facts exist and that they are true.

The meaning and the effect of the statutory rule is, since the adoption of chapter 406 of the Acts of 1931, not entirely free from doubt. Under that act as construed in Thomas v. Pa. R. R. Co., 162 Md. 509, 160 A. 793, appeals from decisions of the commission shall be tried in the courts to which such appeals are taken upon the record made before the commission. Under the law as it stood before that act, the rule was that the burden of proof was upon the party attacking the decision to show that the commission had erred, and that is the rule now. But there is this difference: under the law, before the act of 1931, an appellant from the commission's decision could meet that burden either by showing that the commission had misconstrued the law or the facts proved before it, or by adducing new evidence in the court to which the appeal was taken to show that upon all provable and proved facts in the case not necessarily that the commission erred, but that its decision was wrong, for the case before the commission might because of the new evidence be different from that presented on appeal. Under the law as it stood then, the trial on appeal was virtually a trial de novo except that the appellant carried the burden of showing affirmatively that the commission had erred. But, as the law now stands, the appellant is limited to showing that the commission misconstrued the facts actually proved before it, or that it misconstrued the law applicable to such facts, so that the proceeding on appeal no longer looks to a trial analogous to a trial de novo, but to a review of the record made before the commission, and on such an appeal the only issues of fact open are the inferences to be drawn from the facts actually proved before the commission. Strictly speaking, therefore, the "burden of proof" provision of the statute cannot mean the same thing when applied to the amended statute as when applied to the original statute, for there can be no burden of proof without the privilege of adducing proof. In the proceeding before the commission, one asserting facts affirmatively either as a claim or a defense necessarily carries the burden of establishing them, and when, as is now the case, the appellate tribunal is limited to a review of the record, it is not apparent how the "burden of proof" provision of the statute can mean anything more than that on appeal it must appear from the record made before the commission that the appellant met in the proceeding before the commission that burden by proving facts which should have led to a different conclusion than that reached by it. Or, stated in another way, the question on appeal is whether from the evidence before it the commission should have reached the conclusion it did. In dealing with that question, the primary issue before the court trying the appeal must be whether there was before the commission any evidence legally sufficient to permit a finding of the controverted fact, and, if such evidence appears, then whether the commission properly construed the fact so found. In such an inquiry it is not apparent how the burden of proof provision of the statute can mean anything more than that one holding the affirmative must prove on appeal as he must prove before the commission what he assorts. Otherwise the mere finding of the commission could establish as a fact that which in truth did not exist and of which there was no evidence. So that, where the facts are undisputed or conceded and susceptible of no inference supporting appellant's contention or where they are disputed but whether proved or not permit no inference supporting such contention, the question on appeal is one of law unaffected by the burden of proof rule, for it then falls within the reasoning of Harrison v. Central Construction Company, 135 Md. 170, 108 A. 874, and other cases cited in Hygeia Ice Co. v. Schaeffer, 152 Md. 234, 136 A. 548, Beyer v. Decker, 159 Md. 289, 150 A. 804, and in States Engineering Company v. Harris, 157 Md. 488, 146 A. 392. But, as pointed out by Judge Pattison in Catherman v. Ennis (Md.) 165 A. 482, where the facts proved before the commission are susceptible of a construction supporting the decision of the commission as well as a construction adverse thereto, the appellant on appeal has theoretically the burden of showing that the commission drew the wrong inference, but that is more a rule of logic than of law.

Coming then to the precise question presented by the appeal, the inquiry is whether there was before the commission evidence legally sufficient to permit a finding on appeal that the injury for which compensation is asked arose in the course of and out of claimant's employment and was accidental in its nature.

There was in the case evidence tending to show the following facts which while contradicted in some particulars will for this inquiry be taken as true:

Schemmel, the claimant, was at the time of the injury 34 or 35 years of age, and prior to it his health had been excellent, although his family physician testified as the result of his examination, apparently made after the accident, he found Schemmel's blood pressure was higher than normal, but, when he left home to go to work on the day of his injury and indeed when he arrived at the quarry, he appeared to be in fine health and spirits.

The Bush quarry where he was employed is near Churchville in Harford county, and is an excavation about 300 feet long by 80 feet wide, about 100 feet deep on one side and 40 feet deep on the other. Access to the quarry floor was by means of ropes which the employees used in ascending or descending its walls, and by ladders.

In the early morning, before the sun was high enough to shine directly into it, the quarry was somewhat cooler than the outside air, but as the sun arose higher and its rays struck the rocky sides of the quarry the absence of ventilation and the reflected heat raised the temperature in the quarry until in the middle of the day it was perhaps ten degrees Fahrenheit above the temperature of the outside air.

In the quarrying operations, in order to loosen it for removal, holes were drilled in the rock and filled with dynamite which was exploded by a device apparently located outside the quarry. The gases released by such explosions and the dust caused by them make a "sort of a cloud" which hangs over the quarry until it is dissipated by the air "and it settles." Inhalation of the gases thus released produce circulatory changes in the brain and causes headaches, and it was customary for the workmen not to return to the quarry until an interval of about fifteen minutes had elapsed after an explosion.

The accident occurred on July 1, 1931, which was intensely hot and "stuffy." The temperature in Baltimore city on that day arose to 101 degrees, in Aberdeen to 97 degrees, and in Darlington to 98 degrees, and the temperature at the quarry was about 100 or 101 degrees at 2 o'clock in the afternoon. About fifty or fifty-one men were around the quarry, and of that number about forty to forty-five were employed in the quarry itself. On the day Schemmel was stricken, four of these men stopped work, and at 2 o'clock the quarry was "closed down" because it was "too hot to work" the men.

Schemmel went to work at the quarry at about 7 o'clock that morning, and in the course of his work descended into the quarry and arranged mud...

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