Zentz v. Peters & Taylor, Inc., 283

• Decision Date: 11 January 1971
• Docket Number: No. 283,283
• Parties: Richard C. ZENTZ v. PETERS & TAYLOR, INC., et al.
• Court: Court of Special Appeals of Maryland

Page 1

11 Md.App. 1

272 A.2d 430

Richard C. ZENTZ v. PETERS & TAYLOR, INC., et al.

No. 283.

Court of Special Appeals of Maryland.

Jan. 11, 1971.

Harry Goldman, Jr., Baltimore, for appellant.

Charles R. Goldsborough, Jr., Special Asst. Atty. Gen., with whom were Francis B. Burch, Atty Gen., and J. Howard Holzer, Baltimore, on brief, for appellees.

Argued before ORTH, MOYLAN and POWERS, JJ.

ORTH, Judge.

We affirm the judgment of the Baltimore City Court in favor of Peters & Taylor, Inc., employer, and State Accident Fund, insurer, appellees, for costs. We find that there was legally sufficient evidence to support the court's determination that the injury suffered by Richard C. Zentz, employee-appellant, resulted solely from his intoxication while on duty. We hold, therefore, that the lower court's disallowance of appellant's claim under the Workmen's Compensation Law was not clearly erroneous. Maryland Rule 1086.

The case came to the Baltimore City Court on appeal from a disallowance of the claim by the Workmen's Compensation Commission. The Commission had found on issues before it that (1) appellant did not sustain an accidental personal injury arising out of and in the course of employment; (2) appellant's disability was not the result of an accidental personal injury arising out of and in the ocurse of employment; and (3) appellant's injuries were due solely to his intoxication. ¹ The case was presented to the Baltimore City Court, sitting without a jury, on the record before the Commission. ²

Appellant's testimony before the Commission was sparse. He did not remember the date of the accident but knew it was in April (1968). 'We got up on the roof. * * * me and the other foreman. Mr. Peters, he can tell you his name, I forget his name-Mishenko we got in an argument about who is going to mop. I said I can mop (with tar) * * * he hit me and then beat me-the devil out of me * * * On the roof.' He did not remember whether he fell off the roof. His jaws and nose were broken. On cross-examination he said he reported for work the day he was injured about 6:00 A. M. The job was in Aberdeen and five or six men were to be transported to the job in a truck. Asked if he drove the truck, appellant said: 'After, let me see, no I don't believe I ever drove the trunk. I believe I did drive when-wait a minute-I drove once or twice. I don't remember what day I drove or anything.' When they started there was a half pint of whiskey in the truck-'we bought it between three of us' on the way to the job. He did not remember whether they finished it on the job-he had only one shot out of it. 'When I take a drink I can drink a lot at one time.' He did not think they stopped at a filling station. He denied drinking beer because 'I don't drink beer early. I don't until one or two o'clock.' The others were drinking beer as chasers but not him. Questioned about the fight he said, 'I don't-I can't remember anything.' Queried by the Commissioner he remembered they stopped at a Sinclair station 'on the right hand side.' He could not say who was in charge of the job. 'You know how roofers work together, we were both foremen, so I wouldn't say actually who was in charge, not when it comes down to it.' Nobody was over him and Mishenko that morning.

There was adduced from Charles K. Peters, president of Peters & Taylor, Inc. that he had received a telephone call from appellant and Mishenko about 9:30 A. M. on the day of the incident. 'Now they should have been on the job long before that but they told me that they had decided not to work and were coming back and I explained to him they had a load of material being delivered on the job, which had to be unloaded and asked them to go back, reconsider and decide whether they are going to work or not. So they agreed to go back and unload the truck. Then (about 9:30 A. M.) I got a call from the Moore brothers who were on the truck and they said (appellant and Mishenko) were drunk and they wouldn't ride with them.' He told them to wait on the highway, that he would come out and pick them up. Appellant and Mishenko took the truck to the job (Peters did not know who drove) leaving the Moore brothers on the highway where they were picked up by Peters and driven to the job. When he arrived at the job all except appellant were working. 'I asked him why he wasn't working and he said his nose was bleeding and I asked him if he wanted me to take him to a doctor and he said no.' The others said there had been a fight. Appellant then said 'he had a fight with Mishenko and he wasn't going to work.' Peters testified that appellant '* * * appeared to have been drinking. I wouldn't say the man was drunk. I wouldn't go that far after seeing his physical condition but-' Appellant refused to go to a doctor. I brought him all the way back to Baltimore before I talked him into it. Peters took appellant to St. Agnes Hospital. Mishenko told Peters that appellant had started to fight. 'He wouldn't say exactly why, just when he takes spells of running his mouth off, that's all he would tell me.'

George Mishenko testified that on 16 April 1968 he worked for Peters & Taylor, Inc. and reported to the shop near Washington Boulevard. He, 'Dick, Whitey, Henry and a couple of colored boys' were to go to a job in Aberdeen. He drove from a gas station two blocks from the shop to the job. On the way they stopped at three or four bars. Whitey, Henry, Dick (appellant) and Mishenko were drinking before they got to the bars ('we were drinking at the gas station') and in all the bars. Appellant 'had a half pint of Calvert. That was the first one and then after we got Seagrams Seven, because I like Seagrams.' The half pint of Calvert finished they stopped to get some more. They bought another half pint at a tavern at Orleans and Castle Streets. Mishenko, appellant and Whitey, riding in the front seat of the truck, finished the second half pint by the time they got on route 40. They stopped at a bar. Mishenko and appellant each had a shot a beer. They bought another half pint and were joined in the front seat by Henry. The four of them finished that half pint and then they stopped at a bar. Appellant, Mishenko and Whitey had another beer and shot and bought another half pint. Appellant was drinking out of that half pint and they finished it. '(T)hat's when we started arguing.' They were about 15 miles from the job. Asked why they argued, Mishenko said, 'He (appellant) was making a hog of hisself. * * * He was open choking. ³ * * * I told him to shut his big mouth, you know, different language naturally, but actually what it boils down to, he didn't pay for it, now everybody wanted to and he ought to be glad, you know, so then he stopped and he bought a half pint then the next bar and I paid for the beer and the shots we had there.' They finished that half pint before they got to the job. Mishenko's recapitulation of the imbibing was that at first three of them ncluding appellant, and ultimately one more person, drank three half pints of whiskey and that appellant, in addition, had four shots and four beers. When they arrived at the job Mishenko called Peters. 'Well, Dick was running his mouth-he wasn't going to work for me, and I'm no good and a whole bunch of good words.' Mishenko said he was the boss that day and he called Peters and told him 'he better come up here and get Dick (appellant) because he can't go to work anyway * * * Dick wasn't going to be able to work and we lost two boys off the back of the truck.' He explained that two of the men riding in the back jumped off when the truck stopped at a red light. Mishenko said he had known appellant for 15 years. 'We drank a lot together.' Asked what happened on the job, Mishenko said:

'(W)e went up on the roof and he was still running his mouth and I told him, I said, 'man shut up, you know or else take your glasses off.' So about that time he took a swing at me and I popped him and knocked him down. Knocked him down and I held him and said, you know shut up and that's when he kicked me and he was kicking me and I popped him again and that was the end of it. So I went down and he went down to the ground to the trailer was there with the freight and get the men, you know, unloading the truck. I came down and he went back of the truck and he just said-that's when Mr. Peters came and picked him up. That's when he said to finish unloading the trailer and knock off.'

The Commissioner asked: 'If you hadn't been drinking, do you think you would have been fighting?' Mishenko said, 'No, sir.' Asked if he had any arguments with appellant before, Mishenko said, 'Just arguing, he never took a swing at me before.' The Commissioner again asked: 'If you hadn't been drinking you wouldn't got in a fight?' Mishenko replied: 'No, sir, I don't think so. He would have never run his mouth, if he hadn't been drinking.'

Disallowing the claim the Commissioner said: 'Not only is this due to intoxication but it is due to provocation. I don't think the Workmen's Compensation Commission goes that far as to permit this type of going on. The question was very frequently, I asked if he hadn't been drinking would this have happened. The answer is, no.'

In our appellate review we are guided in our consideration by certain statutory provisions and rules of law. We start with the general proposition: 'In all court proceedings under (the Workmen's Compensation Law), the decision of the Commission shall be prima facie correct and the burden of proof shall be upon the party attacking the same.' Code, Art. 101, § 56(c). Section 15 of Art. 101 precludes compensation '* * * where the injury results solely from the intoxication of the injured employee while on duty * * *.' But, '* * * it shall be presumed in the absence of substantial evidence to the contrary * * * (t)hat the injury did not result solely from the intoxication of the injured employee while on duty.' Art. 101, § 64(d).

The lower cour...