Jackson v. Ferree

Johnson, J., delivered the opinion of the Court. Thomas R. Jackson, thirty-three years of age, had been employed as a mechanic with the Frostburg Auto Company for approximately ten years prior to October 9th, 1936, on which date, about 2:30 o’clock in the afternoon, he was stricken with hernia, to secure compensation for which , he filed a claim with the State Industrial Accident Commission, alleging it was caused by an accidental injury arising out of his employment. At the hearing before the commission on December 1.0th, 1936, eight issues were submitted, the first of which was whether Jackson sustained “an accidental injury causing hernia arising out of and in the course of his employment.” The commission answered the first issue “no,” and accordingly did not pass upon the other issues. Claimant thereafter appealed from that decision to the Circuit Court for Allegany County, where the case was heard upon the eight issues similar to those considered by the commission.

At the conclusion of the testimony offered on behalf of the claimant, the trial court granted a prayer offered by his employer, and the latter’s insurer, instructing the jury that there was no evidence in the case legally sufficient to prove claimant sustained an accidental personal injury on or about October 9th, 1936, and their answer to the first issue should be “no.” An exception to that ruling was reserved by claimant, and this is the principal question before us for consideration on claimant’s appeal from the judgment thus rendered against him. In detailing the circumstances under which the hernia occurred, claimant testified that, on the date in question, he was putting the rear wheel on a truck; that this required the use of a new key, and after he had the wheel a part of the way on the axle, it stuck, and “the pain came on”; he “turned around and in a little while the pain disappeared.” He reported this to his foreman and felt ⁴⁰² no further discomfort until about 9 o’clock that evening when, upon getting ready to retire, he examined himself and found “a lump upon his stomach”; that he returned to work the following morning and reported the matter to his employer, who sent him to a physician, by whom he was informed of the existence of the hernia; and that he subsequently underwent a surgical operation for its correction. On cross-examination, he testified that he had put on “a good many wheels of the same type,” also that he- did not recall slipping while attempting to put on this particular wheel; that he did not fall, but as he was “shoving the wheel on, it stuck and jarred me and the pain struck me.” He also testified that other men employed by the same company did the same line of work,