Slacum v. Jolley

• Decision Date: 10 June 1927
• Docket Number: 29.
• Citation: Slacum v. Jolley, 153 Md. 343, 138 A. 244 (Md. 1927)
• Parties: SLACUM ET AL. v. JOLLEY.
• Court: Maryland Court of Appeals

138 A. 244

153 Md. 343

SLACUM ET AL. v. JOLLEY.

No. 29.

Court of Appeals of Maryland

June 10, 1927

Appeal from Circuit Court, Dorchester County; Joseph L. Bailey Judge.

"To be officially reported."

Proceeding under the Workmen's Compensation Act by Lillian W Jolley, claimant, for the death of her husband, Raleigh Jolley, opposed by M. Colona Slacum, employer, and the Ætna Life Insurance Company, insurer.The State Industrial Accident Commission disallowed the claim, and the claimant appealed to the circuit court.From a judgment granting an award, the employer and the insurer appeal.Reversed without a new trial.

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

William D. Macmillan, of Baltimore (Harold Tschudi, of Baltimore, T. Sangston Insley, of Cambridge, and William H. Price, Jr., of Baltimore, on the brief), for appellants.

V. Calvin Trice, of Baltimore, for appellee.

OFFUTT J.

This proceeding arises under article 101, Bagby's Code, P. G. L. of Md., known as the Workmen's Compensation Act.Raleigh Jolley, a colored man, 37 years old, having a wife and one child, was on June 4, 1925, employed as a "bus driver" by Colona Slacum, who operated bus lines between Cambridge, Salisbury, and Hurlock, in Maryland.On that day, which was extremely warm, he was engaged in driving a 36 horse power Studebaker automobile.In the course of the day he complained of the heat, and, when he returned to his home at 5 o'clock in the afternoon, he seemed tired and worn, declined to eat anything, complained of being warm, and drank two or three glasses of iced tea and several glasses of ice water.He went back to his work however, returning to his home at about 9:30 o'clock the same evening.At that time he complained that he still felt badly, drank more iced tea, and after sitting for a while on his porch went to bed.At about 2 o'clock a. m. he complained of pains in his stomach.A physician was called, and he continued to treat him until he was removed to the Cambridge Hospital on June 12, 1925, where he remained until June 14th of the same year, when he died.

On June 25, 1925, Lillian W. Jolley, his widow, filed a claim for compensation in behalf of herself and her infant child with the State Industrial Accident Commission, on the ground that his death was caused by an accidental injury arising out of and in the course of his employment by Slacum.The claim was resisted by Slacum and the Ætna Insurance Company, the insurer, and, after a hearing, was disallowed.The claimant thereupon appealed to the circuit court for Dorchester county.While the case was pending in that court, the defendant filed a suggestion and affidavit for removal, which the court overruled, and that ruling is the subject of the third exception presented by the record in this case.It may be said in passing, without restating the reasons so often given by this court, that there was no error in that ruling.Baltimore v. Kane,125 Md. 136, 93 A. 393;Wilmer v. Light St. Sav. & Bldg. Assn.,141 Md. 241, 118 A. 414;Hoshall v. Hoffacker,11 Md. 363;Geeki v. Harbourd,52 Md. 461;Cooke v. Cooke,41 Md. 362.After the court had overruled the suggestion for removal, a jury was impaneled and sworn to try the following issues; that is to say:

"(1) Did Raleigh Jolley, on or about the 4th day of June, A.D. 1925, sustain an accidental personal injury arising out of and in the course of his employment?

(2) Did the death of Raleigh Jolley result from an accidental personal injury sustained by him on or about the 4th day of June, 1925, arising out of and in the course of his employment?

(3) Did the death of Raleigh Jolley result from disease or natural causes not connected with any accidental personal injury arising out of and in the course of his employment?"

At the conclusion of the trial the jury found their verdict for the claimant on each of the three issues, and from the judgment on that verdict this appeal was taken.

The record submits three exceptions, of which, the first relates to the action of the trial court in overruling an objection to a hypothetical question asked of an expert witness, the second to the court's rulings on the prayers, and the third to which reference has been made to its action in overruling appellants' suggestion for removal.

The controlling question of fact in the case was whether Jolley was overcome by the heat as a result of driving his employer's "bus" on June 4, 1925.To show that he was, the claimant called Dr. Joseph K. Shriver, a medical expert, and asked him this question:

"Assuming that a man in normal health on the 5th day of June, 1925, and operating a motorbus, and that it was an extremely hot day, and after being in this bus from 9:30 in the morning until after 5 o'clock that evening, and he then complains of suffering from the heat, and that he showed the result of weakness and being unwell, and that he drank a lot of ice water--more than two glasses--and was taken with pain in the stomach, would you or not in your opinion say that he had heat prostration in that bus?"

An objection to that question was overruled, and the witness replied:

"According to my notion, from what I heard, it was from heat prostration, particularly in the excessive sweating and exhaustion, but the pain did not have anything to do with heat prostration."

In Gordon v. Opalecky,137 A. 299, D. R. March 22, 1927, this court referred with approval to the statement in Northern Cent. R. Co. v. Green,112 Md. 505, 76 A. 90, 97, that:

"A hypothetical question must embrace every material element of the hypothesis founded upon the evidence, and it must not import into the question any element not founded upon the evidence in the case.If it offends in either respect, it is defective, and it is error to permit such a question to be answered, and, if inadvertently admitted over an objection, it is error to refuse a motion to strike out the answer."

Testing this question by the rule thus stated, it is manifestly defective and should not have been allowed, first, because it assumed a fact which not only was not proved, but which was actually contradicted by the evidence--that is, that Jolley was in the "bus" which he was driving from 9:30 in the morning until 5 o'clock in the evening, whereas the evidence showed that he went to work at 7:15 a. m., drove to Hurlock, and returned to Cambridge at 9:15 a. m., that he then left for Salisbury at 9:30, where he was scheduled to arrive at 11:15, and that according to his schedule he should have left there at 3:15, so that according to the schedule there was a period of four hours during which his "bus" was idle in Salisbury when there was no occasion for him to be in it; second, the question omits any reference to the quantity of iced tea which Jolley drank, where he was, or what he did in Salisbury, or to the fact that he returned to work after he came home at 5 o'clock in the evening.

At the conclusion of the evidence, the claimant offered two prayers which were granted, and the defendants eight, of which the first and second were refused and the others granted.The only important question raised by these rulings is whether the court was right in refusing to direct a verdict for the appellants on the ground that there was in the case no evidence legally sufficient to show that the death of Jolley resulted from an accidental injury arising out of and in the course of his employment.In dealing with that question, we are controlled by the rule stated in Bogatsky v. Heller(Md.)135 A. 417:

"That in cases where the facts are conceded or undisputed, and there is no dispute as to the inferences to be drawn therefrom, their legal significance is a matter of law to be determined by the court."

Its determination depends, first, upon whether the evidence in the case is legally sufficient to show that Jolley died as the result of heat prostration or a heat stroke directly traceable to his employment; and, second, upon whether such an injury is compensable under the statute in force in this state.

In dealing with the first question, we have felt that the wise and benevolent spirit and purpose of the statute should not be defeated by any narrow quibbling or technical construction, and for that reason we have examined with the most critical care the record in this case in connection with the very able and careful brief of counsel for the appellee, but, after such examination, and after giving the appellee the benefit of any possible doubt as to the inferences to be drawn from the evidence, we have been unable to discover any evidence legally sufficient to show that Jolley died as a result of heat prostration directly traceable to his employment.

In connection with that issue, the claimant offered four witnesses, Dr. Coll, Charles Cornish, Dr. Shriver, and the claimant herself.

The claimant in her testimony stated that her husband was "about the usual height" and weighed about 180 or 190 pounds; that when he left his home on the morning of June 4th he seemed to be "perfectly well"; that he had not prior to that complained of any disease; that when he returned home at 5 o'clock she had his supper ready, but he said he did not want anything to eat, complained of being warm, and drank two or three glasses of iced tea and several...