Ackerhalt v. Hanline Brothers

McWilliams, J., delivered the opinion of the Court. As the late William Schwenck Gilbert put it, “Here’s a pretty kettle of fish.” 1 The appellant (Ackerhalt) tells us the trial judge (Mathias, J.) 2 erred when he directed a verdict which set at naught an order of the Workmen’s Compensation Commission, dated 2 February 1967, declaring that Ackerhalt had sustained an accidental injury on 24 March 1966 and awarding him compensation therefor. In our recital of this extraordinary affair we shall be at all times mindful of the familiar rule that the evidence and all logical and reasonable inferences deducible therefrom must be considered in a light most favorable to Ackerhalt. Deremer v. Liston, 252 Md. 571 , 250 A. 2d 622 (1969); Finneran v. Wood, 249 Md. 643 , 241 A. 2d 579 (1968).

Ackerhalt, 65 at the time, was employed by the appellee Han-line Brothers, Inc. (Hanline), as an “outside paint salesman.” Early in the forenoon of 24 March 1966 he visited a construction project near Riverdale to sell some paint. While looking for the paint foreman he tripped over a piece of building material. He broke his fall by extending his right arm. Later in the day, as he was homeward bound in his automobile, he was struck in the rear by another vehicle and “jammed forward into the 1965 Ford” ahead of him.

He was thrown forward and his right hand ¹⁵ struck the “dashboard.” About four hours later his wrist began to swell causing him considerable pain. On the following day he went to see Dr. Isadore Shulman who found that he had sustained an “oblique fracture of [the] distal shaft of [thej ulna.” Dr. Shulman, having applied temporary splints, referred him to Dr. Edward C. Wilson, Jr., who confirmed Dr. Shulman’s diagnosis, adding that there was some “separation of the fragments.” Dr. Wilson ordered X-rays and applied a plaster cast to his forearm. The “Employee’s Claim” was prepared by the appellee Liberty Mutual Insurance Co. (Liberty), 3 Hanline’s compensation carrier, in Liberty’s Washington office. The claim recites, among other things, that Ackerhalt “fell down on a piece of construction material” on Friday, 25 March 1966 at 12 noon.

The claim is dated 7 April 1966 and it appears to have been received in the Commission’s office on 11 April. Although it was not signed by Ackerhalt it was signed by an agent of Liberty to signify consent to the passage of an award. The Employer’s First Report of Injury, which also appears to have been prepared by Liberty, contains substantially the same information. It was received in the Commission’s office on 4 April.

The Commission’s order finding accidental injury and awarding compensation was passed on 19 April 1966. During the weeks following the award Liberty seems to have become aware of Ackerhalt’s automobile accident of 24 March. It then succeeded in persuading the Commission to hold a hearing on the following two issues: (1) is Ackerhalt’s disability the “result of an accidental personal injury rising out of and in the course of employment;” and (2) should the 19 April 1966 award be rescinded. At the hearing, which was held on 1 August 1966, Liberty appears to have persuaded the Commission that while Ackerhalt did sustain an accidental injury on 25 (24) March 1966, his disability “is not the result of an accidental injury arising out of and in the course of his employment,” and on 24 August the Commission rescinded its order of 19 April.

At this point Ackerhalt retained counsel who, on 20 September, filed on his ¹⁶ behalf an appeal from the order of 24 August. During the week following the filing of the appeal, counsel for Ackerhalt and the Commission agreed that a rehearing would be scheduled upon the dismissal of the appeal. The appeal was dismissed on 28 September and the rehearing was scheduled for 3 October. At the hearing, which actually was held on 21 November, Liberty pressed, as it had at the 1 August hearing, for the denial of the claim on the ground that Ackerhalt’s disability was the result of the automobile accident, not the fall.

Counsel for Ackerhalt pointed out that it should not make any difference since he was in the course of his employment at the time of the collision. He was told by the Commission, he said, to file a new claim, asserting an injury in the automobile accident “and then we [the Commission] will issue compensation.” On 9 December the Commission passed an order in which it was stated that the Commission had “concluded to grant * * * [Ackerhalt’s] mo-' tion for rehearing” but at the same time it affirmed the order of 24 August rescinding the award of 19 April. There was no appeal from this order. The new claim was filed on 19 December.

The information contained therein was pretty much the same as that set forth in the earlier application except that the automobile accident was given as the cause of the injury. Liberty promptly demanded a hearing. At the hearing, which was held on 23 January 1967, Liberty resisted the claim on the ground that Ackerhalt fractured his arm not in the automobile accident but when he fell earlier that day. The Commission found as a fact that he fell but that he did not injure himself, that he was injured in the automobile accident and that the injury arose out of and in the course of his employment.

The Commission’s order was dated 2 February 1967. The appeal of Liberty was timely filed in the Circuit Court for Montgomery County. The case came on for trial on 2 April 1968. Liberty called Ackerhalt as an adverse witness and elicited from him testimony the relevant excerpts from which we have set out below. “Q. Mr. Ackerhalt, before the automobile accident on March 24, 1966, and after you had left Lando ver ¹⁷ Hills, you had stopped to buy groceries, and shopped on the way home, is that correct ? “A. That was my intention.

I didn’t do it.” * * * “Q. Maybe this will refresh your recollection. I am reading from page 21 of the transcript of August 1, 1966: * * * ’Yes, and I stopped oil to get some groceries and shop.’ Does that refresh your recollection? “A. That was my intention, to stop off and get groceries. “Q. Your testimony today is that you had not stopped for groceries before the accident ? “A. No, sir.” * * * “Q. Now when you testified before the Workmen’s Compensation Commission on August 1, 1966, you testified that you fell on the job on the 23rd, is that not true ? “A. I believe it was the 24th.” (Emphasis added.) ijc 5{c Jfi “Q. You think today that you fell on the job on the 24th? “A. That is right, the 24th.” “Q. Did you hold out your right arm to break your fall, is that right? “A. That is right. “Q. Is that how you fractured your right wrist? “A. I believe so.” (Emphasis added.) >1= * * “THE COURT: I don’t think it is very clear, the sequence of these accidents. On one occasion he said he first saw Dr. Shulman on the 25th. Then he seemed to agree, or later claimed that he first saw him on the 24th of March.

It is not clear in my mind, and it is not clear in my mind what the sequence of these injuries or accidents was, whether they both occurred the same day, one in the morning, one in the after ¹⁸ noon, different days, or what. Maybe you can clear this up. “THE WITNESS: They occurred the same day. “THE COURT: You had a fall on the job ? “THE WITNESS : That is right. “THE COURT: When you tripped over a piece of Sheetrock, and that was in the morning? [8:30 a.m.] “THE WITNESS: That is right. “THE COURT: Now on the very same day, at 4:30 in the afternoon, you were involved in an automobile accident ? “THE WITNESS: Yes, sir. “THE COURT: And when did you first see Dr. Shulman ? “THE WITNESS: The next day.” “Q. Did you go to see any doctor before you had the automobile accident? “A. No.” * * *' “BY MR. LINSENMEYER: “Q. ‘Getting back to this automobile accident, isn’t it true that you were involved in the automobile accident the day before you fell down on the job?’ A. ‘Not the day before, the day after.’ Doesn’t that refresh your recollection, that these two incidents did not occur on the same day ?” * * * “A. Both happened on the same day.” * * * “Q. The question is, are you now saying that your testimony given before the Workmen’s Compensation Commission in August of 1966 was not true? “A. I honestly don’t remember. “THE COURT: Or was inaccurate? “THE WITNESS : I have to say it is inaccurate.” ^ ^ ^ “CRO S S-EXAMIN ATION “BY MR. INTRATER: ¹⁹ “Q. Mr. Ackerhalt, is there any question in your mind that you had two accidents on the same day, one by falling and one in an automobile accident ? “A. Both on the same day.” * * * “Q. And what part of your body, if any, did you injure in the automobile accident? “A. I was jolted forward.” * * * “Q. What happened, if anything, to your wrist inthe automobile accident?

I don’t want you to answer medically, just what happened to your wrist? “A. My hand went forward to the dashboard. “Q. Did they strike the dashboard ? “A. Yes. “Q. Did your right hand strike the dashboard ? “A. Yes. “Q. Now when did your wrist start to aching ? “A. During the evening. “Q. Was that before or after the accident ? “A. After the accident. “Q. How long after the accident ? “A. Possibly four hours.” * * * “Q. You testified here that you felt that you broke your wrist actually when you fell on the job, is that correct ? “A. That is right. “Q. That is your belief? “A. That is right.” (Emphasis added.) “Frankel: 4 ‘After you fell did your hand turn black and blue ?’ “Answer: ‘And it swelled up badly.’ “BY MR. LINSENMEYER: ²⁰ “Q. Isn’t that what you said to the Commissioner ? “A. It swelled up at night. “Q. Are you