Webb v. Johnson

• Decision Date: 09 June 1950
• Docket Number: 186.
• Parties: WEBB et al. v. JOHNSON.
• Court: Maryland Court of Appeals

74 A.2d 7

195 Md. 587

WEBB et al. v. JOHNSON.

No. 186.

Court of Appeals of Maryland.

June 9, 1950

Frederick W. C. Webb, Salisbury, and John W. T. Webb Baltimore (Webb, Bounds, Travers & Adkins, Salisbury, and Edward D. E. Rollins, Elkton, on the brief), for appellants.

W. Hyland Van Sant, Denton, and Omar D. Crothers, Jr., Elkton, for appellee.

Before, MARBURY, C J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

COLLINS, Judge.

This is an appeal by Dorsey G. Webb, trading as Eastern Shore Air Service, and American Casualty Company, appellants, from a judgment reversing a decision of the State Industrial Accident Commission denying compensation on a claim filed by Robert K Johnson, employee, appellee here.

Two issues were submitted to the jury. The first issue was: 'Did Robert K. Johnson delay filing his claim for compensation in this case until after August 25, 1947, because of conduct on the part of Dorsey G. Webb or American Casualty Company which induced him not to file said claim on or prior to August 25 1947?' To which issue the jury answered: 'Yes.' The second issue submitted was: 'Did the injury sustained by Robert K. Johnson in the accident described in this case arise out of and in the course of his employment by Dorsey G. Webb trading as Eastern Shore Air Service?' To which the jury answered: 'Yes.' At the conclusion of the evidence the appellants moved for a directed verdict on the grounds, among others, that there was no legally sufficient evidence to sustain the issues submitted to the jury. The appellants further contended that under the evidence most favorable to him, the appellee was barred from compensation by his engagement in an unlawful act at the time and place of the accident, and by his wilful misconduct at that time and place. It was further contended that there was no legally sufficient evidence that the failure of the appellee to file his claim within one year from the beginning of his disability 'was induced or occasioned, (a) by fraud or (b) by facts and circumstances amounting to an estoppel'. Action on this motion was withheld until after the verdict of the jury.

The appellants, after the verdict, filed a motion for judgment n.o.v. on the grounds set out in the motion for a directed verdict, and a motion for confirmation of the decision of the Commission. From the overruling of that motion by the trial judge and the entry of a judgment reversing the decision of the Commission, the appellants appeal.

For the purposes of this case this Court must assume as true the testimony most favorable to the appellee. It was recently said in the case of Spencer v. Chesapeake Paperboard Company, 186 Md. 522, at page 526, 47 A.2d 385, at page 387: 'The trial judge, in determining whether a verdict should be directed in favor of the employer on such an appeal, must assume the truth of the evidence presented by the claimant. Bethlehem Steel Co. v. De Mario, 164 Md. 272, 277, 164 A. 748.' We will therefore review the evidence accordingly.

The appellant, Webb, in 1946 owned and operated an airport and airplanes in Talbot County, Maryland. The appellee was employed by Webb as a mechanic at the airport early in 1946. In addition to doing mechanical work he cleaned the planes and solicited passengers to fly for hire. Webb and John Dennis, the manager and chief pilot, were both licensed as commercial pilots. As part of his wages the appellee was given the right by Webb to use his planes without cost for one hour a week in order to learn to fly. He was also given the privilege of using any plane at one-half the regular price. He also ferried planes from other fields. On August 4, 1946, appellee obtained a Federal 'Private Pilot's License' which allowed him to fly a plane alone and to take up a passenger as his guest or 'on a share the cost basis'. He testified that he never took anyone up on the 'share the cost basis'. The license did not permit him to take up passengers for hire. It was a criminal offense for him to do so. Code 1947 Supplement, Article 1A, Section 17. Code 1939, Art. 1A, Section 22. Prosecution for this misdemeanor is barred after one year. Code 1939, Article 57, Section 11.

The appellee reported for work on Sunday morning, August 25, 1946. After doing his usual work he was instructed by Webb to take up two passengers, which he did. The money was paid to Webb for these rides. About four o'clock that afternoon four boys drove up to the airport and appellee solicited them for a ride. He discussed with them the cost and was told they would advise him later. He quoted them a price of $2.50 for the larger plane, and $2.00 for the smaller one. He went through the crowd to his automobile where his then fiancee, now wife, and sister then were and talked to them. At that time Webb called to him and said: 'Bob, I got a hop for you'. This is corroborated by appellee's wife and sister. The prospective passenger, Higgins, one of the four boys previously solicited by the appellee, came toward him from the office. Mr. Webb then told appellee he had a passenger to take up in the larger plane, the PT 19. Johnson and Higgins secured their helmets, got in the plane, and fastened their safety belts. Dennis cranked the plane. They started from the airport and after flying a short distance, the plane suddenly crashed, severely injuring the appellee and Higgins, the passenger. Higgins testified at the trial that he was to pay $2.50 for the flight. He further testified that appellee said nothing to him 'about going up on a share the ride basis, share the cost basis'.

Appellee did not file his claim for compensation until November 10, 1947, approximately fifteen months after the accident. He had a fractured ankle, fractured skull, and a bladder injury which required an operation. He was in a cast for eight months. Appellee testified that while he was in the hospital Webb and Dennis 'talked to me about the accident and what I would get out of it to take care of the hospital expenses and all, and they assured me then not to worry about it, that they was working out a settlement with the insurance company * * *. * * * I was asking him who was going to take care of the hospital bills, and, of course, I knew they were going to amount to a good bit, and he told me he had insurance and he was working out a settlement with them, for me not to worry about it, the main thing for me was to get well, and I let it go at that.' After he was discharged from the hospital and on crutches Mr. Webb 'assured me then that I would be taken care of and I had nothing to worry about.' After he received hospital and doctor's bills, he went to see Webb and appellee testified that 'each time he (Webb) would assure me he was working out a settlement with the insurance company, that I would be taken care of, I had nothing to worry about.' Mrs. Johnson testified that Webb assured her and Mr. Johnson, 'that he would taken care of matters, that he had nothing to worry about'. Webb testified: 'Well, when the accident first occurred, I was sure that I was covered by insurance, for I had insurance on the airplanes, liability and property damage and passenger insurance on the airplanes, and I also have the workmen's compensation insurance, so I was sure that I was covered on one part or the other, so I told him I was sure that he would get paid from the insurance company for his injuries, so later the insurance company says on this flight he was on his own. It wasn't in line of his duties and work.' Webb said that he believed Johnson knew he had workmen's compensation when he came to work for him. Six months after the accident the insurance company notified Webb that they denied the compensation claim. Johnson said that Webb never informed him of this. About fifteen months after the accident, appellee's sister-in-law told him that he ought to write to the Commission and find out about his claim. The Commission then sent him the notification form to be signed. Johnson filled this out and returned it and was notified that, as he had not signed the application within a year, his claim was denied. Webb never told Johnson that it was necessary for him to file a claim for compensation and Johnson did not know of this requirement or of its consequences. There is nothing here to show that Johnson knew the limitations barred prosecution for the criminal offense after one year.

On November 20, 1946, an insurance adjuster went to see the appellee and secured from him a signed certified statement in which appellee said, among other things, that at the time of the accident he had taken the Higgins boy up on 'the share the ride basis and nothing was paid or to be paid to Webb'. At the trial of the case, when he said he told and swore to an untruth in his statement to the insurance adjuster, appellee testified: 'Well, I had been instructed by Mr. Webb and Mr. Dennis prior to that that if I didn't tell them that I had taken him up on a share the ride basis that they could prosecute me for operating out of my license and that if the boy should die they could hold me for manslaughter.' The appellee's wife testified that at the hospital the morning Johnson was operated upon, Webb and Dennis were discussing the statement Johnson 'could give to the insurance company'. Johnson was not present at that time. She said she was seated between Webb and Dennis and the conversation between these two men was to the effect that Johnson should tell the insurance company: 'That he (Johnson) took Herman Higgins as share and share the ride'.

We must assume therefore, in deciding the questions before us, that the appellant, Webb, instructed the appellee Johnson to take Higgins up in the plane for the price of $2.50. Webb was sure that he was covered by insurance as he...