Baltimore Dry Doors & Shipbuilding Co. v. Webster

⁶¹⁸ Pattison, J., delivered the opinion of the Court. This appeal was taken by the Baltimore Dry Docks and Shipbuilding Company, employer, and The United States Fidelity and Guaranty Company, insurer, from an order of the Superior Court of Baltimore City affirming an order of The State Industrial Accident Commission allowing* compensation to the claimant, Eva Webster, for the- death of her husband, Victor Webster. Victor Webster, the deceased, was, on the 20th day of April, 1920, employed by the Baltimore Dry Docks- and Shipbuilding Company as a carpenter upon a vessel then in course of construction by said company. About 9 o’clock in the morning of that day, Webster went from one of the lower decks of the vessel through the cabin to and upon the upper or top deck, carrying with him the tools with which he worked, consisting of brace and bit, saw, and ax.

It was while there that he fell from said deck to the ground below, causing a compound fracture of the left side of the skull extending to the base of the brain, from which injury he died on the same day. The employer, in its report to the State Industrial Accident Commission, which under the statute it was required to make, in describing how and in what manner the accident occurred, stated that the deceased, “while rising up from laying down tools stepped on a rivet, which caused the patient , to fall backwards off the ship, falling a distance of 45 feet, striking his head on the step below.” Upon being notified by the commission that Eva Webster had filed with it her claim for compensation for the death of her husband, the insurer, the United States Fidelity and Guaranty Company, asked that it be given a hearing upon the claim for compensation so made by the wife, upon the following grounds: 1. That injury did not arise out of, or occur while in the course of employment. 2. That the death was not the result of an accident. 3.

To determine the extent ⁶¹⁹ of dependency, and upon such other further grounds, both legal and equitable, as may appear at the hearing. The hearing was had as requested, at which evidence was adduced both in support of and against the claim so made, and at the conclusion of the hearing the commission announced its findings, which were: “That Victor Webster was injured on the 20th day of April, 1920, while in the employ of the Baltimore Dry Docks and Shipbuilding Company; that as a result thereof he died on the same day; that said injury and death arose out of and in the course of his employment; that his average weekly wage was $35.00; that he left surviving him his widow, Eva Webster, who was wholly dependent upon him for support at the time of his injury and death, and is therefore entitled to an award of $17.50 per week, not to exceed $4,250 in the aggregate, said payments to begin as of April 20th, 1920, or until further order of this commission.” On September 22nd, 1920, an order in conformity with said findings was passed by said commission, directing that said compensation so allowed be paid to the claimant by the Baltimore Dry Docks and Shipbuilding Company, employer, and the United States Fidelity and Guaranty Company, insurer, from which an apeal was taken by the said employer and insurer to the Superior Court of Baltimore City. The case was submitted to Judge Gobtek, sitting without a jury, upon the record transmitted from the Industrial Accident Commission to said court. The appellants asked two questions of the court, and submitted to it one prayer.

By the first of these questions the court was asked, “Was the death of Victor Webster on the 20th day of April, 1920, due to a fall occasioned by a vertigo or epileptic fit ?” The court declined to answer this question, because, as it stated, its determination was not material to the decision of the case. The court was asked by the second question, “Was the death of Victor Webster on the 20th day of April, 1920, ocoa ⁶²⁰ sioned by an injury received in the course of and growing out of his employment?” To this question the court answered “yes.” By the appellants’ prayer the court was asked “To declare; the law that if it finds, sitting as a jury, from the evidence, that Victor Webster met his death on April 20th, 1920, as the result of a fall occasioned by a vertigo or epileptic fit, that then the verdict must be for the defendant, notwithstanding-that the court further found the fact that he was engaged in work at the time growing out of and in the course of his employment.” This prayer was refused by the court. The only exception found in the record is to the rulings of the court in refusing the appellants’ prayer and in refusing to answer the appellants’ first question. If we understand correctly the position of the appellants, they concede that the decedent, at the time of his death, was engaged in an extra hazardous occupation, and that his death resulted from an accidental personal injury sustained by him in the course of his employment; but they deny that his death resulted from an injury arising out of his employment.

To entitle the claimant to compensation it was not only necessary that it be shown that death resulted from an injury sustained by the employee in the course of his employment, but also that his death resulted from injuries arising out of his employment. It will be seen from the court’s answer to- the second question that he found that the death of the employee resulted from the injury sustained by him arising out of his employment, as well as in the course of his employment. It is contended by the appellants that the employee^ death did not result from an injury sustained by him arising out of his employment, but from an injury resulting from a fall from the deck of the vessel, caused by a fit or an attack of vertigo, with which he was at the time seized. It was upon the theory of that contention that the appellants’ first question and prayer were submitted to the court. ⁶²¹ There was some evidence produced at the hearing before the commission to the effect that the decedent was for some years prior to the accident subject to attacks of vertigo or dizziness.

Dr. Stem, physician for both the employer and insurer, testified that on three different occasions, covering the period between August 1st, 1918, to June 1st, 1919, Webster was brought to the hospital of the Maryland Ship Building Company, where the witness was then employed, suffering on each occasion with an attack of vertigo or dizziness, and on one of these occasions he was partly unconscious; that Webster admitted to him that he had been suffering with vertigo or dizziness for ten or twelve years. It appears from the 'record that the employer’s report to the commission stating how death occurred was made out hv this witness, who at the iime was in some way associated with Dr. Carroll, whose name appears to said report which is found in the record. This report stated that the accident occurred “while rising up from laying down tools (Webster) stepped on rivet, which caused patient to fall backwards off the ship.” This report Dr. Stem said was made from information obtained from A. E. Johnson and John Kidd, who reported to him how the accident occurred. They both told him that they saw Webster stooping down to his tools when he fell.

John Kidd, when before the commission, testified that he (nine through the companionway upon the poop deck, just as Webster was falling from that deck. ITe saw him fall, hut could not say how he fell; that there was someone with him at the time, but co-uld not say who it was; it may have been Johnson. The deposition of Johnson was taken in New York City, before a notary public, at the instance of the employer and' insurer; the counsel for the respective parties being present. He testified that he was waiting for someone who was- to he sent by his foreman to assist him in the work-that he was-to-do ; that while there, sitting upon a pile of lumber between, the cabin and hatchway, Webster came up- from the. cabin bringing with him. a brace and bit; saw and hatchet; that' ⁶²² 'Webster spoke to him and then engaged in conversation with him, that for a few minutes Webster stood in front of him before taking his seat upon the lumber beside him, that when he did so he placed his tools upon the deck before him.

Webster’s home was in Somerset Oounty; he had left his family, and had come to1 Baltimore, where he was temporarily engaged at work, and where he boarded in the same house with Johnson. It was in this way that he became acquainted with him. Johnson had been at work with the Baltimore Dry Docks and Shipbuilding Company for only one or two days before the happening of the accident; and when Webster saw Johnson upon the deck, on the occasion referred to, he engaged in conversation with him, first as to> matters in connection with their association at their boarding house, and next in relation to Johnson’s work upon the vessel, asking him among other things how he liked his job. After sitting there with Johnson upon the pile of lumber for a little while, Webster got up from where he was sitting, and picked up his tools, as witness said, still continuing his conversation with him, which at that time was in relation to a change of work for witness, and while so talking Webster started backward, a peculiar expression came over his face, he looked to him like he was in a trance, he put one of his hands to his face, and continued to go back until he went over the side or stem of the vessel, which was protected by a gunnel only a few inches high.

The witness, however, testified that there was upon the deck floor, where Webster was standing, a number of rivets two or more inches long and seven-eights of an inch in diameter; and he admitted that he had said to Dr. Stem and others upon the day of the accident that Webster stumbled and fell over the rivets. He persisted in saying, however, that what he said to Dr. Stem and others was not. true, and when asked why he said that Webster had stumbled over the rivets, causing the fall, he said he did not know; it just came into his mind, had no reason whatever, that lie “did not take it seriously then,” but he finally said that “a bolt (rivet) flew in the air, but God knows the bolt could not have ⁶²³ thrown him that far. The holt (rivet) was ten feet away from where he fell,” thus indicating that the bolt or rivet was thrown in the air by the movement of Webster, but in his opinion the fall could not have been caused thereby, because of the distance of the bolt from the side or stern of the vessel. Other witnesses testified that they were told by Johnson on the day of the accident that Webster stumbled over the rivet, and others who had known Webster for years, and who worked with him, not only in the city, but in the country before he came to the city, testified that they had not before heard of Webster’s being subject to> dizziness or vertigo.

The decisions of the courts of this country, as well as those of England, are in conflict upon the question of the liability of the employer, or insurer, in this class of cases. The case upon which the appellants seem most to rely is that of Brooker v. Industrial Accident Commission ( 176 Cal. 275 ), decided by the Supreme Court of California in 1917, and found in L. R. A. 1918 F. 878 . In that case the decedent was employed as a laborer in the erection of a building’, and at the time of the accident was working upon a scaffold five feet in width and thirty-nine feet above the ground.. The scaffold was guarded by a rope three feet high along its. upper edge.

While so engaged, the decedent fell to the surface of the scaffold, rolled off the edge and fell to the ground, and death resulted therefrom. There was evidence in the case showing that he was subject to epileptic fits, and that he was seized with one of these fits while so at work on the scaffold, in consequence of which he fell upon the scaffold, and, as a