Harris v. R. P. Dobson & Co.

Bond, C. J., delivered the opinion of the Court. The appellant, claiming to be the widow, of John W. Harris, a colored laborer who was killed while in the employ of R. P. Dobson & Co., appeals from a, judgment of the Superior Court of Baltimore City, which affirmed the order of the State Industrial Accident Commission, denying, compensation to her and her infant child. The commission found that the death was not caused by an accident arising out of and in the course of the deceased’s employment, and that he had been guilty of wilful misconduct causing the accident. The court below, on appeal, found against the ⁷⁴ claimant solely on the ground of wilful misconduct by the deceased.

Harris was employed by Dobson & Co.’s foreman on Saturday, February 2nd, 1925, in connection with the construction of a building in Baltimore City, and put to work at digging a ditch for pipes. He worked part of Saturday. The foreman then told the men at the ditch not to go back into it on the Monday following imtil it was shored up. The foreman and' one workman, Powell, testified that he told the men to wait until he himself came and shored it up, and another workman, Manley, testified that the order was merely not to go into the ditch until it was shored up.

The ditch was then ten or fifteen feet deep. On Monday morning, at 7:30 o’clock, when Harris and the two other men came to work, there was no one there to give orders, .or to shore the ditch up, and not knowing what else to do, Harris and Manley resumed digging in the ditch, as usual, one man digging from the bottom, and the other piling the earth up on topi. The third workman, Powell, testified that he refused to go in, and repeated the foreman’s order to the others. Harris replied that he had nothing else to do, and went in.

Powell was then called away to other work. Harris worked on top for a while, and then, exchanging places with Manley, went below. At this time Manley expressed to a. plumber on the job some apprehension about working in the ditch without the shoring, and the plumber went to get lumber and a saw for it. While he was away,* dirt fell in on Harris and crushed him so that he died shortly after.

The first objection presented on this appeal is to the refusal of certain issues prepared and submitted by the appellant, and the granting of others submitted by the employer and insurer. The two sets of issues present exactly the same questions, the differences being in phraseology; and the preference of the appellee’s forms seems to us to have been without any prejudice' to the appellant. There is no error to be corrected in this respect, therefore. ⁷⁵ The second exception is to the action of the court below on the prayers for rulings of law. We find it unnecessary to consider any of the rulings other than those relating to the issue of wilful misconduct of the deceased, for it seems to us that the rulings of law with respect to that issue were correct, and the finding of fact on the issue against the claimant being a complete bar to her claim, the affirmance below of the order of the commission denying compensation must be affirmed here, irrespective of any possible error in rulings on other issues.

By the granting of her third prayer, as modified by the court, the claimant was declared entitled to recover, on other facts subsequently found by the court “unless the court, sitting as a jury, further finds that by his own wilful misconduct, the said John W. Harris intended to place himself in a' position whereby he might expect to meet with injury or death, and in carrying out such intention, met his death as the result of the injuries received by him.” And, again, the court declared, by granting the appellant’s sixth prayer with modifications, that if it were found that on returning to work Monday morning Harris did not wait as ordered by the foreman on Saturday, but worked in the ditch and was killed by the caving in, still, “liachael E. Harris is entitled to compensation, unless the court, sitting as a jury, further finds that the failure to follow said instructions constituted such wilful misconduct on the part of the deceased, John W. Harris, as to show that he intended thereby to place himself in such a hazardous position that injury or death might result as the reasonable consequence of his act.” And the court refused to declare, as prayed in the appellant’s seventh prayer, that there wa's no evidence legally sufficient to show wilful misconduct on Harris’ part, and, at the same time refused to declare, on the appellee’s prayer, that wilful misconduct was shown by uncontradicted evidence. On other prayers of the appellees the burden of proof upon the claimant, especially in view of the finding of the commission on this issue adverse to her claim. (’Code, art. 101, sec. 56), was properly stated. ⁷⁶ The meaning of the term “wilful misconduct” in the statute has been considered by this Court in earlier cases. Baltimore Car Foundry Co. v. Ruzicka, 132 Md. 491 ; Beasman, v. Butler, 133 Md. 382 .

As was stated in the opinions in those cases, not all violations of rules or orders amount to wilful misconduct which, under the statute, disentitles an injured workman to compensation. Few operations, perhaps none, can be carried out in strict accordance with rules and orders; some departures in practice are inevitable. And we must assume that the Legislature had