Foble v. Knefely

Offutt, J., delivered the opinion of the Court. This case has been in intermittent litigation since November, 1983. It involves a claim of Mildred Knefely against A. J. Foble, trading as Foble Shirt Company, employer, and the Phoenix Indemnity Company, insurer, for compensation for disability resulting from an injury said to have been caused by an accident which the claimant said arose out of and occurred in the course of her employment. The record omits matters which for clarity should have been included, and includes others which ⁴⁷⁷ might well have been omitted, and leaves in obscurity the earlier steps in the proceeding.

It may be inferred, however, that the claim was filed in November, 1933, that the supposed accident occurred on September 20th, 1933, that at a hearing in March, 1934, the Commission decided that the disability resulted from an accident which arose out of and in the course of her employment, and awarded the claimant compensation aggregating $298 for temporary total disability, reserving the question of any permanent disability for future consideration. Over four years later, after hearings extending over a period of more than two years, the Commission rescinded its order of March 21st, 1934, and disallowed the claim. From that order the claimant appealed to the Circuit Court for Dorchester County, where a judgment was entered reversing the order of the Commission, and remanding the case that the Commission might determine the extent of the disability. This appeal is from that order.

The appeal presents a single question, which is whether the evidence in the case was legally sufficient to support a reasonable inference that the disability suffered by the claimant resulted from an accidental injury arising out of and in the course of her employment by Foble. That question was raised by the refusal of the appellants’ three demurrer prayers. All other objections to the rulings of the trial court were expressly abandoned, and need not therefore be considered. The claimant, at the time she was injured, was employed by Foble to operate a machine for sewing cuffs on shirts.

The machine is mounted on a table and in appearance is not unlike the ordinary domestic sewing machine. The fabric to be sewed is held in place by the pressure of a flat thin plate called a foot, projected at a right angle from a small iron or steel rod against a flat base. To operate the machine the foot is lifted, either by a small hand lever, or by a knee press, and the fabric inserted between the foot and the base. Ordinarily the foot is lifted by the knee press rather than by ⁴⁷⁸ the hand lever.

The knee press is a thin rod extending vertically through the table, to which is attached by a sleeve and a set screw a vertical flat elliptical plate which slides up and down on the rod, so that it may be adjusted to the height of the operative’s knee, and is fastened in place by the set screw. It is operated by a lateral pressure to the right of the operative’s knee against the flat side of the plate, which lifts the foot and permits the insertion of the fabric. When the pressure against the knee press is released, the foot descends and clamps the material against the base, and the knee press springs back to a vertical position. 1 On May 21st, 1935, the employer and insurer filed with the Commission a request for a hearing on these issues: “(1) Has the claimant sustained a permanent partial disability from the accident in this case? (2) If she sustained a permanent partial disability, to what extent is it?”, to which these issues were later added: “(4) By Claimant: Attorney’s fee.

(5) By Atty.—Employer: Has the claimant refused to accept medical attention offered her by the employer and failed to secure proper medical attention elsewhere. (6) Whether her disability was aggravated or prolonged and was such conduct on her part arbitrary or unreasonable.” Following that request there were at least three hearings before the Commission, one on April 24th, 1936, one on November 19th, 1937, and one on June 3rd, 1938, and on July 28th, 1938, the Commission “rescinded” its order, of March 21st, 1934, and disallowed the claim. On August 22nd, 1938, the appeal from that order was filed, and on October 7th, 1938, what purported to be a transcript of the record from the Commission was filed in the Circuit Court for Dorchester County, which was supplemented by an additional transcript filed on October 18th,. 1938. In neither transcript was there any statement of the contents of the order of March 21st, 1934, nor indeed any reference to it at all except the bare statement in the final order of the Commission that it was rescinded, and, so far as the record shows, there was no request ⁴⁷⁹ on the part of the employer and insurer for a rehearing on the question of the compensability of the temporary disability, nor any request on the part of the claimant for compensation for permanent disability, nor was the question of whether the claimant’s disability resulted from an accidental injury arising out of and in the course of her employment in issue before the Commission until June 3rd, 1938, when it was said to have been “raised” by the attorney for the employer and insurer.

June 3rd, 1938, was the day on which the taking of testimony before the Commission was concluded, and from that evidence it appeared without dispute that the claimant had suffered a permanent partial disability. It was at that stage in the case that the insurer, the employer having died, “raised” the issue which the Commission had decided in March, 1934, of whether claimant’s disability was caused by an accidental injury arising out of and in the course of her employment. At the time of the accident Mrs. Knefely had been operating the machine described above for about two weeks. Her work, sewing cuffs on shirts, required her to operate the knee press about two hundred and eighty eight times an hour.

In addition to these facts, which are not in dispute, there was evidence tending to prove other facts which may be thus stated: The knee press “should work very easy. It is just a light touch,” but the knee press on the particular machine operated by the claimant was “right stiff,” and its operation required more force than was needed for other machines used for the same work. One operative, who worked on the same machine after the accident, said: “It was in such condition that I would not want to operate it.” Another operative, who worked on the same machine before Mrs. Knefely operated it, said: “Well, I had to make a lot of complaints about that foot press being stiff. It injured my leg—bruised it.

I had green marks on it. * * * I noticed the pedal or foot press, whatever you might call it, was stiff—hard to press. I had to hit it harder than I did on the other machine.” ⁴⁸⁰ Mrs. Knefely complained of the condition of the machine to a Miss Fannie Fatzer, a forewoman, and also to one Merrick, a foreman. She requested Merrick to have it adjusted, but he said, “there wasn’t anything wrong with it” and did nothing. As stated above, the plate was attached to the knee press by a sleeve which was made to slide along the vertical rod, and was held in place by a set screw.

At times that screw would become loose, and the plate would slide around the rod so that its edge, or the set screw itself, would be pressed by the operative’s knee as she operated the machine, instead of the flat surface of the plate. There appear to have been four hearings before the Commission in connection with the claim, one in March, 1934, one in April, 1936, one in November, 1937, and one on June 3rd, 1938. At the trial in the Circuit Court the claimant was asked this question: “Now on the 16th day of March 1934, before the.State Industrial Accident Commission in a hearing at the court house in Cambridge, Maryland, did you or not testify in reference to this accident and as to the way it happened, as follows: ‘When the knee first began to hurt you was it all at once or gradual?’ Answer: All at once.” She was then asked “Do you recall that?” and she answered: “Well, I meant it came all at once.” She was then asked “Did you so testify as I have read?” and she answered: “Yes, sir, I did. It did come all at once, and it gradually got worse all the time.

That is what I meant.” The transcript of claimant’s testimony given before the Commission on June 3rd, 1938, over four years later, indicates that she made these statements at that hearing: “Q. Did your knee get sore all at once or over a period of time? A. Gradually. “Q. Over what period of time was it getting sore—when had you noticed it, before you quit work—how long before you quit work? A. Just a day or so it started to get sore and I was taken to the doctor right away. “Q. It started to get sore just a day or two before you quit? A. No, sir. “Q. Was there any particular shove or push that caused it to be sore?

A. No, ⁴⁸¹ it was the constant pushing of it that caused it to get sore.” At the trial in the Circuit Court she described her injury in the following testimony: “Well, this knee press was right stiff. In order for me to operate it I put the material in the machine and just as I was ready to turn the knee press over it slipped and turned around and gave me such a jar. I knowed my knee was hurting me. I looked down and there was a bruise there.

It happened all at once. * * * When this machine, the trouble occurred, you mentioned it to Miss Fatzer? A. Yes, sir. “And what did you tell her? * * * A. I told her my knee was hurting very badly—that I had hurt it on the machine. She said, ‘Yes, and you better go home right away.’ And I did. * * * “Tell the jury just how the injury to your knee occurred in the operation of this machine? * * * Well, in order to operate this machine, the knee press was very stiff and hard to operate, so I had to lift the material up, and just as I was lifting the material up to put in the machine, the knee presser turned around and the screw part hit my knee. And right then and there my knee hurt me so bad I looked down and it was bruised.

It hurt all at once, and gradually kept getting worse all the time.” At the conclusion of her testimony she was asked whether at the hearing before the Commission on June 3rd, 1938, she had not testified that her knee got sore gradually, and she replied: “Well, it did get sore all at once and gradually got worse.” Then she was asked: “At the same time and same place to which I have just referred, were you not asked the following questions and your answers to them as follows, with reference to how this occurred? Question: Over what period of time was it getting sore—when had you noticed it, before you quit work—how long before you quit work? Answer: Just a day or so it started to get sore and I was taken to the doctor right away. Question: It started to get sore just a day or two before you quit?

Answer: No, sir. ⁴⁸² Question: Was there any particular shove or push that caused it to get sore? Answer: No, it was the constant pushing of it that caused it to get sore. Did you testify as I have just read to you?” And she answered: I don’t think I did.” Mrs. Fatzer, the forewoman, said that the claimant had reported to her on September 20th, 1933, that the knee press was “working hard and hurt her knee,” and said that “it hurt her knee as she raised it,” that late in the afternoon she examined the knee and it “looked a little red,” and that the next morning the knee was “greenish, like a bruise just commencing to bruise,” and the witness told Mrs. Knefely that she could not go to work. Claimant also directed the attention of othérs to her injury, and on the night of September 20th she complained that her knee hurt her very badly.

On the morning of the twenty-first, after she had been told by Mrs. Fatzer that she could not work, she was taken to the office of Dr. Wolf by Mr. Foble. After that she was treated by Dr. Wolf, Dr. Faw and Dr. Riley, she was taken to a hospital “for X-ray,” the leg from the thigh to the ankle was placed in a cast, and later she was directed by the “Insurance Company” to go to a hospital in Philadelphia, where she was “operated on.” She was discharged before her wound healed, and on her way to the train she fainted. There was also medical testimony that her injury is serious, permanent and disabling. The