Thompson v. Standard Wholesale Phosphate & Acid Works, Inc.

• Decision Date: 23 May 1940
• Docket Number: 26.
• Citation: 13 A.2d 328,178 Md. 305
• Parties: THOMPSON v. STANDARD WHOLESALE PHOSPHATE & ACID WORKS, Inc., et al.
• Court: Maryland Court of Appeals

13 A.2d 328

178 Md. 305

THOMPSON v. STANDARD WHOLESALE PHOSPHATE & ACID WORKS, Inc., et al.

No. 26.

Court of Appeals of Maryland

May 23, 1940

Appeal from Superior Court of Baltimore City; Joseph N. Ulman Judge.

Proceeding under the Workmen's Compensation Act by Anna C. Thompson claimant and widow of John Thompson, deceased, opposed by the Standard Wholesale Phosphate & Acid Works, Inc., employer and the Liberty Mutual Insurance Company, insurer. From a judgment of the superior court on a verdict of a jury reversing a decision of the State Industrial Accident Commission allowing compensation, claimant appeals.

Reversed and new trial awarded.

Where hospital records, though not formally introduced in evidence were treated as being admitted in evidence by counsel for the respective parties, records were considered as evidence.

Paul Berman, of Baltimore (Theodore B. Berman and David L. Elliott, both of Baltimore, on the brief), for appellant.

William D. Macmillan and Rignal W. Baldwin, Jr., both of Baltimore (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellees.

Argued before OFFUTT, PARKE, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

MITCHELL Judge.

This is an appeal from a judgment of the Superior Court of Baltimore City, on the verdict of a jury, reversing a decision of the State Industrial Accident Commission, under which the claimant, Anna C. Thompson, was allowed compensation, by reason of the death of her husband.

The appellant on March 27, 1937, filed her claim with the State Industrial Accident Commission alleging that her husband, John C. Thompson, died on March 7, 1937, as a result of an injury sustained by him on May 2, 1936, arising out of and in the course of his employment with Standard Wholesale Phosphate & Acid Works, Inc., employer; the insurer of the employer being Liberty Mutual Insurance Company.

The hearing was held by the Commission on July 11, 1939, and the order allowing compensation passed on July 25, 1939. From that order, an appeal was taken to the Superior Court of Baltimore City, and there submitted to the jury upon issues as follows:

(1) Whether the deceased employee sustained an accidental injury arising out of and in the course of his employment by the employer?

(2) Was the death of the employee the result of an accidental injury arising out of and in the course of his said employment?

As to the first issue the jury answered 'yes', and to the second their answer was 'no'.

The testimony tends to show that the deceased husband of the appellant, for several years prior to the date of his alleged injury, was employed as a butcher, engaged in skinning horses and dogs; cooking the carcasses of the animals and preserving their hides. He worked in what was known as the 'horse house', and on May 2, 1936, while descending a lidder, it slipped, causing him to fall and injure his right side at the end of his ribs. The testimony also tends to show that the ladder was from 6 to 8 feet long, and was not stationary; that the distance which the deceased fell was from 18 inches to half the length of the ladder; but whether he struck a radiator or the ground in the course of his fall, the testimony is conflicting. Apparently but one witness was with the employee at the time of the accident, and later he was found sitting on a bench holding his right side, it being at that time that he gave the above narrative as to the cause of his injury. Ten or fifteen minutes after the accident the injured employee was sent by the Superintendent of his employer to Marcy Hospital, in Baltimore City, where he was seen by Dr. Wise, who had previously had indirect professional contact with the employee. Dr. Wise examined him and he detailed to the doctor the manner in which the accident happened, as shown by the hospital records, explaining that he was at the time half way up a 7 foot ladder; that it slipped on some grease, causing it to fall suddenly, and that he fell hitting the upper part of his abdomen against a radiator.

The health record of the deceased prior to the occasion of his accident tends to show that on January 11, 1936, he suffered an ailment which was diagnosed at Mercy Hospital as chronic bronchitis; on March 19, at the same institution, a diagnosis showed chronic bronchitis and chronic myocarditis. On March 21, 1936, he was admitted to the above hospital and received treatment until April 4, 1936, when he was discharged. He returned to work and worked until May 2, 1936, the date of the accident, when he was again admitted to the hospotal, treated and discharged sixteen days later. On May 21, he again assumed his duties at the Phosphate and Acid Plant, working there with but slight loss of time, other than legal holidays, until January 8, 1937, when he was first admitted to Franklin Square Hospital from which latter institution he was discharged on January 21, 1937; thereafter, on February 1, 1937, resuming his work and pursuing the same with but slight loss of time, except holidays, until February 28, 1937, when he re-entered Franklin Square Hospital and was there treated until the date of his death.

During thecourse of his successive treatments in the two hospitals, Mr. Thompson came in contact with at least six doctors who were connected, respectively, with said institutions, and who testified as experts, as well as from their own personal knowledge of the physical condition of the deceased employee, upon the respective occasions on which they treated him or made observations of his case.

Of the numerous ones reserved, exceptions by the appellant during the course of the examination of said doctors forms the basis of nearly all of said exceptions. Other exceptions found in the record, however, relate to other evidence adduced at the trial, and in addition to these, exceptions were, respectively, reserved to the rulings of the trial court upon the prayers, and to its action in permitting one of counsel for the appellee, in his closing argument, to inform the jury that the State Industrial Accident Commission in reaching its decision did not have before it the opinions of Drs. Smith and Peters, to the effect that there was no casual connection between the death and the accidental injury of the employee.

Henry C. Fritz, Assistant Superintendent of the employer, testified as to the indicated character of the work in which Thompson was engaged. Mr. Frize recalled the occurrence of May 2, 1936, stating that Thompson claimed to have fallen from a ladder about noon; the witness had a talk with Thompson who stated 'that he was coming down this ladder and slipped and fell and struck his right side at the end of the ribs, against the radiator'. A photograph showing the horse plant in which Thompson worked and the position of the ladder and radiator as of the date of the accident, was admitted in evidence and the witness stated that Thompson claimed 'the ladder slipped and threw him'. Work cards from which the witness testified, tended to show that Thompson returned to work on May 21, 1936, worked practically full time, legal holidays excepted, until January 8, 1937, when he went to Franklin Square Hospital, returning to work on February 1, 1937, and made like time until February 28, 1937, the date on which he entered Franklin Square Hospital the second and last time. And the witness stated that April 13, 1936, was the first day on which Thompson worked subsequent to April 4, 1936, when he was discharged from Mercy Hospital; that the duties of the witness brought him past the horse plant maybe two or three times a day and that on the occasions when Thompson was working, he was doing his work as usual.

Caleb Pinkine, foreman in the plant, testified that Thompson first went to Mercy Hospital on January 11, 1936; he then complained of 'pasins in his stomach like it was gas'; when he returned he reported that his trouble was bronchitis, he had a bottle of medicine and worked the balance of that day; that he returned to Mercy Hospital March 19, 1936, and came back to work April 13, 1936; that he worked from then on to the date of the accident. On that date he explained that at about 12:30 P. M. he was advised by another employee of the plant that Thompson 'had slipped and fell down a ladder'; that he went to the horse factory to see what had happened and saw Thompson sitting on a bench 'complaining he hurt his side, * * * he said he slipped on the iron ladder'; that he claimed he fell off the second rung of the ladder, a measured distance of 18 inches from the ground; he was holding his right side; but 'would not show us anything, any injuries. I asked him but he never showed us'. Further testifying the witness stated that Thompson said he struck the 'L or elbow on the radiator' as he was descending the ladder face forward; that William Lewis, the only eye witness to the accident, was then dead; that Thompson was sent to Merch Hospital the date of the accident, released therefrom May 18, and returned to work May 21. When asked on direct examination the kind of work Thompson did from then on, the reply was: 'He did his regular run of work from then on.' He was then asked: 'Did you notice any difference in the work he did from that time on, from what he had done previusly?' And his answer was: 'No, because the work was slowing up to what it had been previous, due to less horses dying.' Testifying further the witness stated that Thompson worked under him from May 21, 1936, to the last day on which he worked; that he was first sent to Franklin Square Hospital on January 8, 1937, and that he resumed work again on February 1, 1937; was next sent to the same hospital on February 28, and died March 7, 1937.

On cross examination, the witness was confronted with an apparent variance...