Thomas v. Pennsylvania R. Co.

• Decision Date: 11 May 1932
• Docket Number: 52.
• Parties: THOMAS v. PENNSYLVANIA R. CO.
• Court: Maryland Court of Appeals

160 A. 793

162 Md. 509

THOMAS v. PENNSYLVANIA R. CO.

No. 52.

Court of Appeals of Maryland

May 11, 1932

Dissenting Opinion May 31, 1932.

Appeal from Baltimore City Court; George A. Solter, Judge.

Proceedings under the Workmen's Compensation Act by Mrs. Eutha G Thomas, widow of Howard Franklin Thomas, for deceased employee's death, opposed by the Pennsylvania Railroad Company, employer and insurer. The claim was disallowed by the State Industrial Accident Commission, and, from an adverse judgment rendered on appeal to the Baltimore City Court, claimant appeals.

Affirmed.

OFFUTT DIGGES, and PARKE, JJ., dissenting.

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

Richard E. Preece and Edward Pierson, both of Baltimore (Leon H. A. Pierson, of Baltimore, on the brief), for appellant.

Rowland K. Adams, of Baltimore (Adams & Hargest, of Baltimore, on the brief), for appellee.

BOND C.J.

The question principally argued in this case is whether compensation is allowable for the accidental death of a railroad freight conductor under the Workmen's Compensation Act of Maryland, rather than under the Federal Employers' Liability Act (45 USCA §§ 51-59). Another question has arisen in this case, and another from the offers by the claimants on the appeals below, of oral testimony, notwithstanding the provision of the Acts of 1931, c. 406 (Code, art. 101 § 56), that questions of fact should be tried on the record of the original proceedings before the State Industrial Accident Commission, or upon a stipulation of the parties on the facts.

The evidence in this case was all in agreement on the facts, and the finding of the commission in accordance with those facts is, on appeal, to be taken as correct in the absence of any proof to the contrary. Section 56. The testimony was that Howard Franklin Thomas, husband of the claimant, was employed by the Pennsylvania Railroad Company as a freight conductor, working in the Highland yards in Baltimore City. On May 27, 1930, he received an order from the assistant yardmaster to supply a broom factory, that of the Atlantic Southwestern Broom Company, two especially dry cars for shipments of brooms to Brooklyn, N. Y., and Newark, N. J. Thomas was directed to take an engine and bring fourteen cars from a track by the Philadelphia pike, and bring them all down so that two suitable cars might be selected and placed on the broom company's siding for the shipments. He and his engineer examined each of the fourteen cars at the Philadelphia pike, and chose the third and last in the string. They then brought the fourteen cars down the yard, cut out the two selected, one by one, placed them on what is called a south track, and placed the remaining twelve on a No. 2 track. Then they were going back to the south track to put the selected cars on the broom company's siding when Thomas received the injuries which resulted in his death. Upon this evidence the State Industrial Accident Commission disallowed the claim under the Maryland Workmen's Compensation Act, and the claimant entered an appeal to the Baltimore city court. Upon that appeal, the claimant elected to have the questions of fact involved submitted to a jury. Issues prepared for answers by the jury presented questions of law as much as of fact, and were not adapted for the guidance of a jury. The questions were: Whether the commission erred in finding that the injury was not compensable under the Maryland act, whether it erred in finding that it was without jurisdiction of the claim, and whether at the time of injury Thomas was engaged in intrastate commerce. Gold Dust Corp. v. Zabawa, 159 Md. 664, 669, 152 A. 500; Baltimore Publishing Co. v. Hendricks, 156 Md. 74, 79, 143 A. 654. But, as the court disposed of the questions by rulings on the law, no difficulty resulted from the scope of the issues.

At the opening of the trial on the appeal below, an offer was made on behalf of the claimant to produce oral testimony from the witnesses who had testified before the commission, and the exclusion of the additional testimony by the trial court, in accordance with the Act of 1931, c. 406, forms the subject of the first exception. The act was passed subsequent to the disposition of the case before the commission, which was on November 26, 1930, and the appeal, too, had been entered on November 28, 1930. The act became effective on June 1, 1931, and the hearing or trial before the Baltimore city court took place later, in September of 1931. The appellant denies the propriety of construing the act to have a retrospective operation, so that it should apply to prevent the production of the witnesses again on an appeal which had been taken before the passage of the act and the date of its effectiveness. And the argument is based on the principles that the Legislature must, if the language and operation of the statute permit it, be presumed to have intended not to cut off rights already attached, by removing grounds of pending appeals, or changing the existing procedure to the disadvantage of litigants, and in workmen's compensation cases not to depart from the liberal attitude required to accomplish the purposes of the Workmen's Compensation Act. Dryden v. Baltimore Trust Co., 157 Md. 559, 563, 146 A. 752; Bartlett v. Ligon, 135 Md. 620, 626, 109 A. 473; Grove v. Todd, 41 Md. 633, 641, 20 Am. Rep. 76; Grinder v. Nelson, 9 Gill, 299, 52 Am. Dec. 694; Frazier v. Leas, 127 Md. 572, 575, 96 A. 764. But we see no escape from construing the restriction to apply to the previous appeals. The enactment is that "the court shall, from the record made before the Commission (or upon any stipulation of the facts * * *), determine whether the Commission has exceeded the powers granted it * * * and whether it has misconstrued the law and facts applicable in the case decided as disclosed by the record aforesaid or such stipulation." The words are comprehensive and admit of no exception. They constitute the only provision for appeal now in force, the former provision having been repealed in the enactment of this one without any saving clause respecting existing appeals; and the appellant can have only the existing law applied to govern her appeal. Madigan v. Building Assoc., 73 Md. 317, 321, 20 A. 1069; Elliott v. Elliott, 38 Md. 357, 361; Southerland v. Norris, 74 Md. 326, 328, 22 A. 137, 28 Am. St. Rep. 255; State v. Jones, 21 Md. 432, 438. The law as it now stands gives a right to the restricted use of the jury, or to no use of the jury at all.

We do not understand the appellant to question the constitutionality of applying the restriction retrospectively, but the appellee has argued in anticipation of such an objection, and since the argument in this case the court has heard argument in another case, at the succeeding term of court, Celanese Corporation v. Lease, 160 A. 801, on a question of constitutionality in restricting review by a jury in any proceeding to evidence not taken before them. On the objection that a retrospective operation is unconstitutional, it is to be observed that it deprives the appellant of no property or rights in an existing contract, and no right of action or ground of recovery. She is not denied the benefit of proof of the facts. The provision is merely procedural, designating the source or repository of the evidence on the facts for the jury's review. Grove v. Todd, 41 Md. 633, 641, 20 Am. Rep. 76; Grinder v. Nelson, 9 Gill, 299, 52 Am. Dec. 694; Bartlett v. Ligon, 135 Md. 620, 109 A. 473. It is to be presumed that ordinarily the commission before which a claim is made has the supporting facts laid before it. The system calls for the facts to be laid before it, and they must be laid before it if the machinery devised is to be permitted to do the work assigned to it. In some other jurisdictions it has been regarded as unreasonable and unfair to permit the introduction of additional evidence on an appeal from the commission. Poccardi v. Ott, 82 W.Va. 497, 96 S.E. 790. And, in the exercise of the peculiar function committed to courts under the provision included in the Maryland act, that of determining in a proceeding in the nature of an appeal whether the commission has exceeded the powers granted it by the article, and whether it has misconstrued the law and the facts applicable in the cases decided, it is surely not illogical that the review should be confined to the facts which the commission has construed. Such is the practice in some of the other states. In nearly half of the state acts in this country and in federal acts, finality is given to findings of the commissions on facts. Southwestern Surety Ins. Co. v. Pillsbury, 172 Cal. 768, 158 P. 762; Pace v. Appanoose County, 184 Iowa, 498, 168 N.W. 916; Bates & Rogers Co. v. Allen, 183 Ky. 815, 210 S.W. 467; Ridge Coal Co. v. Industrial Commission, 298 Ill. 532, 131 N.E. 637; Davis v. Smith, 262 Pa. 432, 105 A. 559.

And taking up the objection to use of the jury with a restriction as to the source of the evidence to be reviewed, an objection which, now that it has been raised, must be considered before it can be decided whether the ruling in this present case was right or wrong, it is settled for us at the start that, in this special, peculiar proceeding before the court, which the Legislature has devised, it is not required by the Constitution that any jury at all shall be allowed. The Legislature is free to shape the proceeding without giving an option to the use of a jury on the facts. Branch v Indemnity Ins. Co., 156 Md. 482, 489, 144 A. 696. It is conceded, indeed, that here, too, no review of facts need be allowed, that a right of review might be given on the law only, as in the familiar instance of appeals from rulings of the state tax...