Baltimore Tube Co. v. Dove

Pattison, J., delivered the opinion of the Court. The claimant, Charles Dove, on the 10th day of June, 1925, while in the employment of the Baltimore Tube Company, one of the appellants, suffered an accidental injury causing hernia, which necessitated an operation. Upon application made by the claimant, he, on July 3rd, 1925, was awarded compensation by the State Industrial Accident Commission for temporary total disability to August 22nd, 1925. On the next day, August 23rd, he returned to work, but he was unable to do the work he had been doing before his accident.

His foreman had been discharged in his absence, and he was given the lighter work of foreman at the same wages he had been receiving. He continued in this position until ⁸⁹ 1929, without returning to his former work, to which he was to he assigned as soon as he was able to do it. It seems that phlebitis developed from the operation for hernia, and this produced varicose veins in both legs, and as a result of this condition he was not able to stand for any great length of time without becoming tired and exhausted, when he had to sit down and rest. In addition to the injury to his legs, the claimant complained of a recurrence of the hernia, and the development of varicosity affecting his side.

In consequence of these injuries from which he was suffering, in 1929 he petitioned the commission to re-open the case to determine the nature and extent of his disability. In his petition he alleged: “When I signed the final settlement receipt (1925) I was not well, but was told that I would improve. I have not improved and have requested an operation, which has been refused.” A hearing was had upon his petition, and testimony was taken in support of his complaint both as to the injuries to his legs and to his side. The hearing resulted in a denial of his petition.

An appeal was taken therefrom to the Baltimore City Court, and the case was tried therein on the single issue offered by the claimant, which was as follows: “Was the claimant disabled after August 22nd, 1925, as a result of the accidental injury sustained by him on June 10th, 1925, arising out of and in the course of his employment.” The verdict on this issue was “Yes,” thereby reversing the decision of the commission. The case was remanded to the commission, whereupon.the claimant, on March 21st, 1932, wrote the commission asking it “to set this case for an early hearing for the purpose of determining the extent of disability.” Thereafter a hearing was had by the commission, at which the testimony that had been taken upon the petition to reopen, along with additional evidence taken before the commission, was considered by it. The hearing resulted in the passage of an order by the commission, dated April 16th, 1932, by which the order previously passed upon the petition to re-open the case was rescinded and annulled, and in lieu thereof it was ordered “that the Baltimore Tube Com ⁹⁰ pany, Inc., employer, and Travelers’ Insurance Company, insurer, pay unto Charles Dove compensation at the rate of $18.00 per week, payable weekly, for the period of eighty-seven and one-half weeks for permanent partial disability occasioned by twenty-five per cent, loss of use of each leg, and fifty-five and five-ninths weeks for further permanent partial disability under ‘Other cases,’ not to exceed $1,000; Payments of compensation for permanent partial disability to begin at the end of the compensation period awarded for temporary total disability under order of July 13th, 1925.” Erom this order of the commission, an appeal was taken to the Court of Common Pleas in Baltimore City. The case was heard by the court sitting as a jury, and the order of the commission was by it affirmed.

It is from that judgment that the appeal in this case was taken. In the trial of the case, three prayers were offered by the claimant. The first and second were granted; the third refused. The employer and insurer offered one prayer, which was refused, and specially excepted to -the plaintiff’s third prayer, which, as we have said, was rejected.

Their special exception was overruled. The first prayer of the claimant was to- the effect that the evidence shows “that a jury in the Baltimore City Court in a former trial between the parties * * * involving the question of the disability of the elaimánt from the accidental injury of June 10th, 1925, * * * arising out of and in the course of his employment by the Baltimore Tube Company, determined that the claimant was disabled in his right side after August 22nd, 1925; and that the disability was due to the aforesaid injury, and the said verdict and judgment thereon are absolute and final, and the employer-insurer are thereby estopped from denying that the claimant was so disabled, and that the disability was due to the said injury, and if the court finds that the disability in his right side is permanent in character, then he is entitled to receive compensation therefor, even though the court should further find that he has been receiving the same wages before and after Ms accidental injury of June 10th, 1925.” ⁹¹ By claimant’s second prayer it was stated as a matter of law “that if the court finds that he is permanently disabled in his right side, then he is entitled to receive compensation therefor, even though the court should further find that the claimant has been receiving the same wages before and after his accidental injury of June 10th, 1925.” By claimant’s third prayer, which, as we have said, was refused, it is stated as a matter of law “that if the court finds that the amount and number of weeks awarded the claimant by the State Industrial Accident Commission for the disability in his right side is less than the claimant should be paid therefor, then the court can allow him more than one thousand dollars, or more than 55 .5/9 weeks, not to exceed three thousand dollars.” The special exception of the employer and insurer was to this rejected prayer, on the ground that there was no evidence “contained in the record before the court legally sufficient to prove that the amount and number of weeks awarded the claimant by the State Industrial Accident Commission for the alleged disability in his right side is less than the claimant should be paid therefor.” This ruling of the court becomes immaterial and of no' consequence, inasmuch as the prayer, to1 which this special exception was made, was rejected. The court was asked by the employer’s and insurer’s prayer, which was rejected by it, to- state as a. matter of law that upon the record before it the commission “misconstrued the law in awarding claimant compensation at the rate of eighteen dollars per week for a further period of fifty-five and five-ninths weeks for further permanent partial disability under sub-caption 'Other Cases’ of section 36 * * * and that therefore the order of the commission from which this appeal is taken should be reversed as to such portion thereof as contains said award.” As stated by the appellants in their brief: “The questions raised by this appeal are confined to that portion of the commission’s order wherein compensation was awarded on account of the alleged condition of the claimant’s right side ⁹² under the provision designated as ‘Other Oases’ in article 101, see. 36, sub-section 3, relating to- permanent partial disability. The other portion of the commission’s order, relating to the condition of the claimant’s legs, is not disputed, the employer and insurer having fully paid the award contained in that portion of the order, shortly after it was passed by the commission.” The claimant’s first prayer is assailed upon the grounds: (1) That it contains the instruction that, as the jury in the Baltimore City Court at the former trial found that the claimant was disabled in his right side after August 22nd, 1925, as a result of an accidental injury received by him .arising out of and in the course of his employment with the Baltimore Tube Company, the verdict and judgment thereon are absolute and final, and the employer and insurer are thereby estopped from denying that the claimant was so disabled, and that the disability was due to said injury; and (2) that the claimant was entitled to receive compensation therefor, “even though the court should further find that he has been receiving the same wages before and after his accidental injury” resulting in such disability.

Involved in this prayer may be found the further question, presented by the employer and insurer', that the award of compensation made for injury to the claimant’s right side, under subcaption “Other Cases,” is not in accord with the provisions therein contained as to the manner or method of making awards in those cases. In considering the first of these objections, attention will again be called to the fact that at the first trial the only issue submitted to the jury for its consideration was whether or not the claimant was disabled after August 22nd, 1925, as a result of the accident, the answer to which was “Yes.” The contention of the appellants is that, while the jury by their verdict found that the claimant was disabled, after the time mentioned, as a result of the accident, they did not by their verdict state from which of the two> injuries (the one to his side or the one to his legs) the disability resulted. ⁹³ Therefore a finding by the jury that the disability resulted from the injury to the legs only would be consistent with their verdict, and it could not properly be said, as stated in the prayer, that the jury had found that the disability resulted from the injury to the side. The record in the former case, which forms a part of this record, contains the prayers offered and passed upon therein. The claimant offered three prayers, all of which were granted.

The first two were directed to the injury of the legs, and the third to the injury to the side. The only prayer offered by the defendant was granted. This was upon the burden of proof. Other issues could have been submitted to the jury by which a more specific finding could have been had as to the sources of the injury resulting in the claimant’s disability.

But this was not done, and the case went to the jury on the one issue, and the answer thereto was “yes.” As stated in the record before us, the case was remanded by the Baltimore Oity Court to the commission “for further proceedings,” and evidence was thereafter heard and considered by the commission, some of which related to the nature of the disability. Thereupon the commission directed the employer and insurer to pay unto the claimant compensation at the rate of so much per week for a period of time mentioned therein for loss of use of each leg, and as compensation so much per week for so many weeks for the disability resulting from the injury to claimant’s side. In passing upon the first objection urged against this prayer of the claimant, we are to inquire whether the jury by its answer “yes” to the issue decided that the claimant was disabled in his right side after August 22nd, ■ 1925, and that disability was due to that injury, as stated in the prayer. And, should we find the answer did not so decide, we must hold there was error in the instruction.

It is said in 34 Corpus Juris, 868, in discussing the doctrine of res adjudicatei, that “a fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by the judg ⁹⁴ ment therein, so far as concerns the parties to that action and persons in privity with them, and cannot he again litigated in any future action between such parties or privies, in the same court or in any other court of concurrent jurisdiction, upon either the same or a different cause of action. This doctrine, that a fact or question which has been actually and directly in issue in a former suit and has been judicially passed upon and determined by a domestic court of competent jurisdiction cannot be litigated again in a subsequent suit between the same parties or their privies, is simple and universally recognized in almost innumerable cases, the only conflict being in its application to particular cases.” See Christopher v. Sisk, 133 Md. 48 , 104 A. 355 ; Mister v. Thomas, 122 Md. 445 , 89 A. 844 ; Emmert v. Middlekauff, 118 Md. 399 , 84 A. 540 ; Tifel v. Jenkins, 95 Md. 665 , 53 A. 429 , 430; Johnson v. Stockham, 89 Md. 368 , 43 A. 943, 944 ; Martin v. Evans, 85 Md. 8 , 36 A. 258 . In Johnson v. Stockham, supra, Chief Judge McSherry, speaking for this court, said: “When an issue has once been fairly tried in a court having jurisdiction of the parties and of the subject-matter, and has been finally decided on its merits, it cannot, except upon appeal, be again controverted by the same parties in the same or in any other tribunal.” And in the later case of Tifel v. Jenkins, supra, Chief Judge Boyd, speaking for the court, said (quoting from Martin v. Evans, supra): “If a question has once been tried and determined, without fraud or collusion, but on its merits, by a court having jurisdiction of the parties to the controversy, and of the subject-matter involved therein, it cannot be again litigated between the same parties in the same or in any other tribunal, so long as the adjudication remains unreversed and in full and operative effect.” It may,, we think, be said, upon the evidence offered and the specific instructions of the court in respect thereto, that the issue whether the claimant was disabled after August 22nd, 1925,