Schiller v. Baltimore & O. R. Co.

• Decision Date: 02 December 1920
• Docket Number: 27.
• Citation: 112 A. 272,137 Md. 235
• Parties: SCHILLER v. BALTIMORE & O. R. CO.
• Court: Maryland Court of Appeals

112 A. 272

137 Md. 235

SCHILLER v. BALTIMORE & O. R. CO.

No. 27.

Court of Appeals of Maryland

December 2, 1920

Appeal from Baltimore City Court; James M. Ambler, Judge.

"To be officially reported."

Proceedings under the Workmen's Compensation Act by Charles Schiller for compensation for injuries, opposed by the Baltimore & Ohio Railroad Company, employer. From judgment for employé giving him insufficient relief, on appeal from award of the State Industrial Accident Commission, the employé appeals. Reversed, and new trial ordered.

Following are the appellant's prayers and granted prayers of appellee referred to in opinion:

Claimant's First Prayer.

The claimant, Charles Schiller, prays the court to instruct the jury that, if they shall find from the evidence that said claimant sustained injuries while in the employ of the Baltimore & Ohio Railroad Company, a body corporate, and in the course of his said employment, then the verdict of the jury must be for said claimant, and the jury is further instructed that they shall determine by their verdict whether the injuries, if the jury so find, here complained of created a permanent total disability, a temporary total disability, a permanent partial disability, or a temporary partial disability. And, if the jury so find, it shall fix the amount of compensation to which the said claimant is entitled.

(Refused.)

Claimant's Second Prayer.

The appellant prays the court to instruct the jury to determine the nature of the injury sustained by him, herein complained of, if the jury so find, and the amount of compensation to which he is entitled, if the jury so find, and the length of time during which he may be thereunto entitled, if the jury so find.

(Refused.)

Claimant's Third Prayer.

The claimant prays the court to instruct the jury that, if they find that the claimant is entitled to recover as per the instructions marked in claimant's first prayer, then the jury may find that the inguinal incomplete hernia of the claimant sustained in the course of his employment by the Baltimore & Ohio Railroad Company, if the jury so find, is permanent in its character, and the jury is further instructed that it is within the power of the State Industrial Accident Commission to modify said finding of permanency if the events should hereafter justify such modification.

(Refused.)

Defendant's Third Prayer.

The court instructs the jury that the plaintiff cannot recover compensation beyond a time at which the jury, under the evidence, may find he could have been cured, if the jury further find that by the exercise of reasonable care and prudence he could have been cured by an operation as testified in this case.

(Granted.)

Defendant's Fourth Prayer.

The court instructs the jury that the decision of the State Industrial Accident Commission awarding the plaintiff compensation for a period of eight weeks is prima facie correct, and that the burden of proof is on the plaintiff to show this period of eight weeks is incorrect, and that this burden has not been met unless the jury are so convinced by a preponderance of the evidence; that is to say, if after weighing all the evidence the minds of the jury are in a state of equipoise so that they find it just as likely that the period of eight weeks, as awarded by the Commission, is correct as that such period is not correct, then they can only allow the plaintiff compensation for a period of eight weeks.

(Granted.)

Defendant's Fifth Prayer.

(Withdrawn.)

Defendant's Sixth Prayer.

The court instructs the jury that, if they find that under the evidence in this case an ordinarily careful and prudent man would have submitted to an operation for the cure of hernia and if they further find that the period of incapacity from doing heavy work as the result of such operation would not under the evidence of this case have been more than eight weeks, then they cannot allow the plaintiff compensation for a period longer than eight weeks.

(Granted.)

Defendant's Seventh Prayer.

The court instructs the jury that, even if they find that the plaintiff is entitled to recover some compensation, and that the hernia complained of is existing at this time, if the jury so find, yet if the jury shall further find that the plaintiff could have prevented his present condition of hernia by promptly submitting to proper surgical treatment and they shall further find that the plaintiff failed to use reasonable and ordinary care to avoid the continuation of the hernia he suffered, and shall further find that such failure on his part to exercise reasonable care and caution to prevent the continuation of his hernia, if the jury so find is responsible for his present condition of hernia, then the plaintiff cannot recover any compensation for the loss which he has suffered, if any, by reason of his neglect in failing to have himself so treated.

(Granted.)

David Ash, of Baltimore, for appellant.

Duncan K. Brent, of Baltimore, for appellee.

ADKINS J.

The conceded facts in this case are as follows:

Charles Schiller, the appellant, on the 21st day of December, 1917, sustained a hernia as a result of lifting a heavy cylinder head out of a pit while in the employ of the appellee. In February, 1920, when this case was tried in the Baltimore City court on appeal, he was still suffering from his injury. There is no dispute about the fact of the injury or that it occurred in the course of and grew out of his employment, and the liability of the appellee is admitted. The question raised is as to the permanency of the disability.

On March 14, 1918, Schiller filed a claim for compensation with the State Industrial Accident Commission in which he stated his average weekly wage was $13. The award of the Commission was that the Baltimore & Ohio Railroad Company, employer, pay to the said Schiller compensation at the rate of $6 per week for the period of eight weeks from the 7th day of January, 1918.

From this award an appeal was taken to the superior court of Baltimore City, and subsequently on suggestion and affidavit this case was removed to the Baltimore City court, where it was tried three times, the first two verdicts in favor of Schiller having been set aside on motions of the defendant.

This appeal is from the judgment entered on the third verdict, which was as follows:

"Verdict in favor of the claimant for eight weeks' benefit with compensation at the rate of $10.91 per week, making a total of $87.28" (it having been admitted the claimant at the time of the injury was earning $21.82 per week).

There are 17 bills of exception. The first, second, and sixteenth bring up for review a question of procedure under the Workmen's Compensation Act on which this court has not heretofore been required to rule, viz.: Is the trial court on appeal from Industrial Accident Commission bound, on the request of either party, to submit questions of fact to the jury in the form of issues, and, if so, what character of facts and in what form.

Section 56 of article 101 of the Code, which contains all the provisions of the act in regard to appeals in such cases, is as follows:

"Any employer, employé, beneficiary or person feeling aggrieved by any decision of the Commission affecting his interests under this article may have the same reviewed by a proceeding in the nature of an appeal and initiated in the circuit court of the county or in the common-law courts of Baltimore City having jurisdiction over the place where the accident occurred or over the person appealing from such decision, and the court shall determine whether the Commission has justly considered all the facts concerning injury, whether it has exceeded the powers granted it by the article, whether it has misconstrued the law and facts applicable in the case decided. If the court shall determine that the Commission has acted within its powers and has correctly construed the law and facts, the decision of the Commission shall be confirmed, otherwise it shall be reversed or modified. Upon the hearing of such an appeal the court shall, upon motion of either party filed with the clerk of the court according to the practice in civil cases, submit to a jury any question of fact involved in such case. The proceedings in every such an appeal shall be informal and summary, but full opportunity to be heard shall be had before judgment is pronounced. No such appeal shall be entertained unless notice of appeal shall have been served personally upon some member of the Commission within thirty days following the rendition of the decision appealed from. An appeal shall not be a stay. If the decision of the Commission shall be changed or modified, the practice prevailing in civil cases as to the payment of costs and the fees of medical and other witnesses shall apply. Appeal shall lie from the judgment of the circuit court of the county or the common-law courts of Baltimore City to the Court of Appeals as in other civil cases, and such appeals shall have precedence over all cases except criminal cases.

The Attorney General shall be the legal adviser of the Commission and shall represent it in all proceedings whenever so requested by any of the commissioners. In all court proceedings under or pursuant to this article, the decision of the Commission shall be prima facie correct and the burden of proof shall be upon the party attacking the same."

It is not entirely clear just what is meant by the provision that "upon the hearing of such an appeal the court shall upon motion of either party filed with the clerk of the court according to the practice in civil cases, submit to a jury any question of fact involved in such case." What practice is referred to? Does it mean the practice as to filing the motion, as...