41 A.2d 502 | Md. | 1945
Catherine Krell, appellant here, filed with the State Industrial Accident Commission a claim on her behalf and on behalf of her three dependent children for compensation. She alleged that her husband, Theodore H. Krell, died on October 28, 1943, as a result of an injury sustained by him that day in the employment of the Maryland Drydock Company, his average weekly wage being $68. She further alleged that while working on a pier, he fell overboard and drowned. After a hearing before that Commission on July 7, 1944, the claim was disallowed. From that decision she appealed to the Baltimore City Court. After trial before a jury, on October 16, 1944, the appellee offering no evidence, the trial judge *431 granted the employer's and insurer's A and B prayers: (a) instructing the jury that the claimant had offered no evidence legally sufficient to establish the fact that Theodore Krell died on or about October 28, 1943, and (b) that no evidence was offered legally sufficient to establish the fact that Theodore Krell died as a result of an accidental personal injury sustained by him arising out of and in the course of his employment by the appellee on that date. The Court further directed a verdict for the appellee. From the judgment entered on that verdict, the appellant appeals to this Court.
Substantially, the evidence presented by the appellant at the trial below follows. Theodore H. Krell at the time of the alleged accident was forty-seven years of age, and his wife, thirty-nine years old. They were married on October 24, 1923, and had lived together ever since that time with no domestic or financial difficulties. They went out occasionally to moving picture shows, to see his friends, his family, and his mother. They had six children, three of whom were dependent upon the husband for support. He treated his wife and children well, had a happy disposition, worked regularly and except for an occasional glass of beer, drank very little. He was a dutiful son and a good husband and father. He had been working for his employer for about ten years and recently ten hours a day, seven days a week. His health was good, and he had not been treated by a doctor since his marriage. On the morning of the alleged accident his health and disposition seemed to be as usual with no domestic or financial difficulties. He apparently had no reason to leave home. He enjoyed the respect of his fellow employees with whom he was popular and was regarded as sober, upright, dependable and one who never required much supervision.
He was employed as a fireman and guard. It was his duty to see that every ship came into the yard had proper fire protection equipment aboard, fire hose, fire extinguishers, and general fire fighting equipment. It was his duty to see that the hose was placed on the bow part of *432 the ship on different decks, where there was more than one deck, leading directly to and connecting with the fire hose connection on the pier. He was required to make occasional trips during his eight-hour shift to see that these hoses were still in proper condition and available for fighting fires. If a ship left the yard, he was required to go aboard approximately one half to three quarters of an hour before leaving time and clear the ship of fire-fighting equipment, place it on the pier and store it until again needed.
There are five piers at the Maryland Drydock Company from 600 to 800 feet long with no rails. The water runs from 15 to 20 feet in depth. Ocean-going merchant vessels, tankers, and navy boats tie up at these piers. In addition to the piers there are four floating drydocks located one between each pier. On October 28, 1943, there were about eighteen vessels tied up at the Maryland Drydock. To get from the pier on the boats there are normal stairs with hand rails. In some cases there is a temporary ladder placed on each side of the boat for the safety of the workmen in the event that something might happen. There are ladders on the pier to the bulwark of the ship. The sides of the ships which Krell was supposed to board are from one to two feet from the piers depending upon the tide and wind.
The property of the Maryland Drydock Company runs about three quarters of a mile along the water front. In addition to the boats that are tied up at the piers, there is a ferry that comes in on the east side of the Maryland Drydock property. A gate leads from the premises of the Maryland Drydock to the ferry pier. It is not possible for any one to get out of the property of the Maryland Drydock Company without going through a gate at which there are guards if the gate is open, or by boat other than the ferry. When a workman leaves the yard during working hours, his number is taken. When a guard leaves the yard, his number is not taken, but the other guards are in a position to see him go in and out. The time for the change of shift on which Krell was working was *433 4:30 P.M. He worked from 7 to 3 in the yard and from 3 to 5 on the parking lot outside the gate directing traffic.
On the alleged date of death, Mr. Krell rode from his home to his work in the automobile of John A. McMullen, his immediate boss, a lieutenant of guards at the Maryland Drydock Company. He had been riding to work with McMullen every morning and home every evening for three or four months. On his way to work he wore plain work clothing and a felt hat. He would work in the same clothes except that he would change to a uniform hat. He checked in at the plant and was seen by McMullen at 11 o'clock that morning.
He was last seen at about 2 P.M. by Captain Burling L. Rogers who was in charge of plant protection and security. At that time Rogers looked out of his office window which is below the level of the ground, and he saw Krell walking on the ground along the edge of the seawall toward No. 3 drydock. The seawall is of concrete and about the same width as the street, 20 or 25 feet wide, wide enough for two trucks to drive along it and adjoins the water and has a slope of about 12 inches. He was walking a little faster than usual, dressed in a raincoat and with a rain cover over his cap. Walking along anywhere in the yard would have been in line with his work. Rogers does not know whether he had on rubber boots or not as he could not see below his knees. The guards usually wore rubber boots in rain or snow. It had been raining all that day, off and on. At the time Krell was seen by Rogers, it had cleared off somewhat, but it was probably misty. When Krell failed to show up at the parking lot about 3:15 P.M., McMullen began to inquire in the yard to determine if he had been seen. Neither the guard whom Krell was supposed to relieve at that time nor any of the guards on the piers or at the entrance gates had seen him.
CaptainRogers, about 5 P.M., received a call stating that they could not locate Krell. Immediately a searching *434 party was organized throughout the yard in all the buildings everywhere in the yard, on the ships, around the water front, on the parking lot and everywhere where it was thought he could be. The day shift was kept overtime that night and about eight men stayed until dark, and they searched every ship there. Instructions were issued as each shift came in to search the ships, and a detail was assigned as a searching party.
The Baltimore City Police Department was notified, and the police boat proceeded to drag around the piers and along the seawall and around the drydocks. The police boat of the Maryland Drydock Company continually patrolled in and around the piers. About two days later a diver was called in to go down around one of the piers and drydocks. A few days later a long line equipped with welding rod hooks was seesawed from one side of the drydock to the other. Captain Rogers testified that he does not know of anything that could have been done to locate Krell that had not been done and further that everyone in the yard was looking for him and that there were from forty-five hundred to five thousand men employed there. Krell's locker was searched and in it were found his hat and shoes worn to work by him that morning. His work card showed that it was not punched out that day.
Testimony was offered by Dr. Robert Lee Graham, specializing in post mortem examinations, that in cold weather a drowned body often does not come to the surface, but in the springtime when the water gets warmer, bodies usually rise to the surface. Edward B. Kilchenstein, a detective sergeant of the Baltimore Police Department, testified that Krell's description was placed on a teletype, given to all the districts in Baltimore City, placed on lookout sheets, and sent through the mail to forty-three cities.
Although a year, with the exception of nine days, had elapsed between the date of Krell's disappearance and the date of judgment, according to the testimony he has never been seen since. *435
As no one could leave the property of the Maryland Drydock Company by land without going through a gate at which guards were stationed and as he was not seen to pass through these gates, the conclusion of this Court from the facts here presented in this case is that at the time of his disappearance, he was "fenced in" and occupied a position similar to one who disappears on a ship.
By Code 1939, Article 101, § 79(c) there is a presumption that the death, if it occurred, was not occasioned by the willful intention of the employee, himself, or of another.
The appellant is faced with certain presumptions.
When a person has been shown to have been living at a given time and has not been absent or unheard of continuously for seven years, the continuance of life will be presumed until the contrary is proved or inferred from the nature and circumstances of the case. Jones on Evidence in Civil Cases, 4th Ed., Sec. 60; Schaub v. Griffin,
By Article 101, § 70 of the 1939 Code, the decision of the Commission is prima facie correct, and the burden of proof is on the party attacking that decision. It has been frequently held by this Court that the burden of proof is upon the party attacking it to show error in the decision of the Commission which must on appeal be taken as prima facie correct. JewelTea Co. v. Weber,
In the instant case the facts were proved without contradiction, and in such cases where there is no dispute as to any material inference of fact, the Court may decide the issue as one of law. Beasman Co. v. Butler, supra,
This Court here is not called upon to render a decision (1) as to whether Theodore H. Krell died on the date alleged or (2) whether his death arose out of an accidental personal injury sustained in the course of his employment. It is our duty to decide whether there was legally sufficient evidence such as to give the jury the opportunity under proper instructions as to burden of proof to determine those questions upon the facts presented and the material inferences of facts therefrom.
(1) The case of Tisdale v. Connecticut Mutual Life Ins. Co.,
1868,
The Court said in that case at pages 175 and 176, of
The Court held that facts and circumstances relating to character and prosperity were admissible to explain the conduct of such an honored and upright citizen who apparently had no reason to wantonly abandon his family and friends. And further at page 177 of
In Fidelity Mutual Life Ass'n v. Mettler, 1902,
In Brownlee v. Mutual Ben. Health Acc. Ass'n, 9 Cir.,
A recent case on the points pertinent here is Gero v. JohnHancock Mutual Life Insurance Co., 1941,
The defendant presented an instruction: "That on all the evidence in the case a finding that Edward W. Gero died on July 16, 1938, rather than disappeared in life is mere speculation and conjecture and that the jury has no right to make a finding of death, and that the Court direct the jury to return a verdict for the defendant on this ground." This instruction was refused and as to that refusal the Supreme Court of Vermont said that there was no error in refusing it; that the fact of the death and the date could be shown by circumstantial evidence; that there was enough if the circumstances taken together reasonably tend to support the inference sought to be drawn therefrom; that there was in that case no presumption of death after seven years' absence unheard of, and the fact of death was not to be inferred from the disappearance alone. It was further stated that according to some decisions, the fact and time of death within seven years of disappearance may be inferred only when the absentee is shown to have been exposed to some peril carrying with it the imminent danger of extinction or when his health or habits were such as to render his continuance in life unlikely.
It was there stated that the great weight of authority, however, is to the effect that the inference may be also drawn from other circumstances than those just mentioned and cited with approval to sustain this weight of authority, Tisdale v.Connecticut Mutual Life Ins. Co., supra,
In the case of Lesser v. New York Life Ins. Co., 1921,
In the case of Bernstein v. Metropolitan Life Ins. Co. of NewYork, 1943,
(2) As to the contention that there was not sufficient evidence to present to the jury to establish the fact that Theodore Krell died as a result of accidental personal injury sustained by him arising out of and in the course *442
of his employment, the case of Gero v. John Hancock Mut. LifeIns. Co.,
It was there argued that since the death must rest upon an inference to be drawn from the circumstances, the inference of the manner of death must be based upon the prior inference, which is not permissible. It was pointed out therein that Wigmore onEvidence, 3d Ed., para. 41, states that the rule forbidding an "inference upon an inference" is unorthodox and fallacious, but that this theory had been frequently applied by the Courts. It was also pointed out therein, which aptly applies to the case at bar, that a given set of facts proved to the satisfaction of the jury may give rise to two or even more separate inferences, and in such a case one inference is not built upon the other, but each is drawn independently from the same evidence. In that case it was recognized that there was legally sufficient evidence to justify the jury in finding not only the death of the insured, but the approximate time of it and that he was drowned. Likewise in the case at bar, on the same set of facts presented here the jury may find the death of the insured and also that the death occurred by accidental drowning arising out of and in the scope of his employment as there is a presumption against suicide.
The case of Gero v. John Hancock Mutual Life Ins. Co., supra, also cites the case of Harvey v. Fidelity Casualty Co., 6 Cir., 1912,
In Salmon Bay Sand Gravel Co. v. Marshall, 9 Cir., 1937,
See also Veselsky v. Bankers' Life Ins. Co.,
The appellee, to sustain the granting of its B prayer, relies strongly on the case of Robertson v. North American *444 Refractories Co.,
In the case of Baltimore Towage, etc., Co. v. Shenton,
Although certain aspects of this case are novel in Maryland and although the continuance of life is here presumed until the contrary is proved or inferred from the nature and circumstances of the case, this Court is of the opinion, based on the evidence here presented and authorities herein given, that the circumstantial evidence is such as to be above speculation and conjecture and such as to be legally sufficient to support a finding by the jury by inference from undisputed facts produced, if the jury so finds, that this sober, industrious, healthy man with a good disposition, a happy home life, with a wife and children whom he loved, and "fenced in" at the time of his disappearance, died on the date alleged from an accidental drowning arising out of and in the course of his employment, and therefore that the A and B prayers of the defendant should not have been granted. The judgment, therefore, must be reversed and the case remanded for a new trial.
The appellant's sixth exception was to the exclusion of her statement in the claim filed with the State Industrial Accident Commission, that the cause of death was by drowning. This statement might properly have been admitted as a part of the record stating her claim, similar to a declaration, Moller MotorCar Co. v. Unger,
Judgment reversed with costs, and case remanded for a newtrial. *446