Scherr v. Miller

Decision Date23 October 1962
Docket NumberNo. 26,26
PartiesHenry B. SCHERR, t/a Fremont Vending Co. v. Edward A. MILLER, Sr.
CourtMaryland Court of Appeals

Paul Weinstein, Baltimore (Milton G. Horwitz and Horwitz & Horwitz, Baltimore, on the brief), for appellant.

Samuel D. Hill, Baltimore (Louis Carliner, George W. White, Jr., and Buckmaster, White, Mindel & Clarke, Baltimore, on the brief), for appellee.


SYBERT, Judge.

The Workmen's Compensation Commission by an order dated March 20, 1961, disallowed the claim of Edward A. Miller, Sr., appellee, for accidental injuries allegedly arising out of and in the course of his employment. On appeal by Miller to the Baltimore City Court a jury determined, on issues submitted to it, that he had sustained an accidental personal injury arising out of and in the course of his employment, and that the injury was not occasioned by a wilful intent to bring about the injury of himself or another. The bases of the employer's appeal here from the judgment entered in favor of the employee are the refusal of the trial court to direct a verdict on the ground that there was no legally sufficient evidence to justify submission of the case to the jury, and alleged error of the court in refusing to grant certain jury instructions requested by the employer.

Miller was since 1954 in the employ of the appellant, Henry Scherr, trading as Fremont Vending Company, in the latter's vending machine business. His duties included the collection and distribution of the monies deposited in the machines, located mostly in taverns in Baltimore, the repairing of the machines and the solicitation of new customers.

In addition, Scherr operates the Diamond Cab Company. Miller was also an employee of this business for approximately 26 years. For the services rendered in the two capacities, Miller was paid each week by separate checks from Diamond Cab Company and Fremont Vending Company.

On February 17, 1959, Miller, as an employee of the vending machine business, entered a tavern operated by Frank Winterling for the sole purpose of collecting money from a coin-operated pool table and making a division with Winterling. Two men seated at the bar were being served drinks by Winterling. One of them was Lawrence Bradley. Miller sat on a stool at the bar, waiting for Winterling to give him the key to the machine.

There was sharp conflict as to subsequent events. Miller's version was that Bradley asked him, 'What is your pitch with the Diamond Cab?' He ignored Bradley, since he didn't recognize him, but the latter then said, 'Every time you see me you give me a hard time.' When Miller still ignored him, Bradley, in a belligerent manner, addressed to him the familiar epithet aspersing his maternal ancestry, whereupon Miller replied, 'Look, fellow, let's don't have that argument in here, take it outside or somewhere else.' This, according to Miller, was just a figure of speech and not an invitation to go outside. Then Bradley repeated the epithet, invited Miller to come outside, and walked out himself. Miller followed him out, wearing his eyeglasses. His purpose was, he said, to explain that Bradley was mistaken as to his identity, that he was there on business and didn't want any contention in the place. He said he did not anticipate a fight, but that when he stepped to the sidewalk Bradley struck him several times and knocked him down, inflicting disabling injuries. Miller denied striking any blows. Later, Winterling gave him the key to the machine and Miller made the collection and divided with Winterling.

Bradley's testimony was that he had been to the races and had had approximately three drinks there and two at the tavern. He was part owner of a brake service company and recognized Miller as an employee of the Diamond Cab Company, with which he had done business for several years. He said his first comment to Miller in the tavern was a facetious one about the squealing brakes of the taxicabs. His subsequent testimony, corroborated by Winterling, was that after his remark Miller came over to where he was seated, began using profanity, and insisted that he come outside. As he went out the door he was struck on the back of the neck by Miller and knocked to the sidewalk. He rose, tried to push the flailing Miller away, and then wrestled him to the pavement, where he suggested to Miller that they forget about it and return to the tavern, which they did. Both men stated that they had never had any trouble before.

Miller further testified that his employer, Scherr, instructed him to handle customers in the bars where he made collections 'with silk gloves', and to avoid trouble by giving a handful of nickels to disgruntled losers on the vending machines and by buying drinks, often 'for the house.' He said these instructions applied to anyone in a place, not just those playing a machine. While he stated that 'I never had any trouble in one of the places before', he indicated elsewhere in his testimony that on a number of occasions he had, by following Scherr's instructions, succeeded in placating angry and belligerent players who saw him taking the money out of the machines. As an example, he told of one tavern where a customer 'used to lose quite a bit of money, and every time I would walk in the place he would come after me and give me a bad time. I would open up the machine and give him a handful of nickels, and on occasion I have given him two handfuls of nickels, to keep him satisfied.'

Miller's testimony as to his instructions from Scherr, and previous incidents in bars, was uncontradicted. It was supported, in part, by testimony from Winterling that when trouble threatened in connection with Miller's collections in his place he 'eliminated it before it started' by telling the customers to 'keep their mouths shut'. With reference to Miller, the barkeeper observed that 'Some people come in a barroom and they think they have got a right to pick on a man in his category.'

One other factor to be noted is the relative size of the antagonists. Miller said he weighed 104 pounds and was five feet two inches tall. Bardley testified that his own weight was between 210 and 220 pounds. His height was not stated.

In order for a claimant to recover under the Workmen's Compensation Law (Code [1957], Art. 101, Sec. 15) for an accidental injury, he must show that it arose both 'out of' and 'in the course of' his employment. Bethlehem Steel Co. v. Jones, 222 Md. 54, 158 A.2d 621 (1960), and cases cited. Since the employer does not argue that Miller's injury was not 'accidental', or that it was not incurred 'in the course of' the employment, the basic question before us is whether there was legally sufficient evidence to warrant submission to the jury of the issue whether or not the injury was one 'arising out of the employment'. If there was any evidence from which the jury could deduce a rational inference that the injury arose out of the employment, the weight and value of that evidence was properly left to the trier of the facts. Stancliff v. H. B. Davis Co., 208 Md. 191, 117 A.2d 577 (1955).

An injury to an employee is said to arise out of his employment 'when it results from some obligation, condition or incident of the employment', Watson v. Grimm, 200 Md. 461, 90 A.2d 180 (1952), and whether it does so depends upon the circumstances of each particular case, Spencer v. Ches. Paperboard Co., 186 Md. 522, 47 A.2d 385 (1946). As it was put in Consol. Engineering Co. v. Feikin, 188 Md. 420, 425, 52 A.2d 913, 916 (1947):

'An injury 'arises out of' employment when, after consideration of all the facts and circumstances of the case, it is apparent to the rational mind that there was a causal connection between the conditions under which the work is required to be performed and the ensuing injury. * * * The causative danger must be incidental to the nature of the business, and not independent of the relation of master and servant. If the injury can be seen to have followed as a natural incident of the work, and to have...

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