Benoni v. Bethlehem-Fairfield Shipyard, Inc.

Collins, J., delivered the opinion of the Court. The claimant, appellant, James Benoni, on March 28, 1945, while working for the Bethlehem-Fairfield Shipyard, Inc., and earning an average weekly wage of $75.88, was injured as a result of a load of bricks falling on him. A claim was filed before the State Industrial Accident Commission and a hearing was held on June 19, 1945, ³⁰⁸ to determine the nature and extent of his disability. At the hearing the appellant appeared and testified.

The appellant offered in evidence the report of his examination made by Dr. Robert W. Johnson, Jr., at the instance of his attorney. The report of Dr. Robert E. Chenowith was also offered. These reports were considered by the Commission, but by agreement of counsel were not to be used in case of appeal. The Commission, on June 26, 1945, ordered that the Bethlehem-Fairfield Shipyard, Inc., employer, and the Maryland Casualty Company, insurer, appellees here, pay unto James Benoni, claimant, appellant here, compensation for permanent partial disability at the rate of $18 per week, payable weekly for the period of 41% weeks, not to exceed the sum of $750 under “Other Cases.” From that award the appellant appealed to the Court of Common Pleas of Baltimore City.

After the filing of the decision of this Court in the case of Townsend v. Bethlehem-Fairfield Shipyard, Inc., 186 Md. 486 , 47 A. 2d 365 , hereinafter referred to in this opinion as the Townsend case, the appellees filed a motion to dismiss the appeal. The appellant then filed a motion requesting the Court to reverse the decision of the Commission, and on the same day filed eight substituted issues. The purpose of these amended or substituted issues was to have a jury determine if the appellant had suffered any disability to any of his extremities, on the theory that as a result of the permanent disability to his back, he had permanently lost a part of the use of each arm and leg. The trial judge denied the appellees’ motion to dismiss the appeal and he sustained the appellees’ exceptions to appellant’s substituted issues and allowed the appellant five days to file additional amended issues.

After the five days had expired, the appellant stated to the Court in writing that he was unable to prepare other issues which would submit to a jury the question of the extent of his permanent partial disability. The appellant also, by his written statement, raised the