Krell v. Maryland Drydock Co.

Cóllins, J., delivered the opinion of the Court. Catherine Krell, appellant here, filed with the State Industrial Accident Commission a claim on her behalf and on behalf of her three dependent children for compensation. She alleged that her husband, Theodore H. Krell, died on October 28, 1943, as a result of an injury sustained by him that day in the employment of the Maryland Drydock Company, his average weekly wage being $68. She further alleged that while working on a pier, he fell overboard and drowned.

After a hearing before that Commission on July 7, 1944, the claim was disallowed. From that decision she appealed to the Baltimore City Court. After trial before a jury, on October 16, 1944, the appellee offering no evidence, the trial judge ⁴³¹ granted the employer’s and insurer’s A and B prayers: (a) instructing the jury that the claimant had offered no evidence legally sufficient to establish the fact that Theodore Krell died on or about October 28, 1943, and (b) that no evidence was offered legally sufficient to establish the fact that Theodore Krell died as a result of an accidental personal injury sustained by him arising out of and in the course of his employment by the appellee on that date. The Court further directed a verdict for the appellee.

From the judgment entered on that verdict, the appellant appeals to this Court. Substantially, the evidence presented by the appellant at the trial below follows. Theodore H. Krell at the time of the alleged accident was forty-seven years of age, and his wife, thirty-nine years old. They were married on October 24, 1923, and had lived together ever since that time with no domestic or financial difficulties.

They went out occasionally to moving picture shows, to see his friends, his family, and his mother. They had six children, three of whom were dependent upon the husband for support. He treated his wife and children well, had a happy disposition, worked regularly and except for an occasional glass of beer, drank very little. He was a dutiful son and a good husband and father.

He had been working for his employer for about ten years and recently ten hours a day, seven days a week. His health was good, and he had not been treated by a doctor since his marriage. On the morning of the alleged accident his health and disposition seemed to be as usual with no domestic or financial difficulties. He apparently had no reason to leave home.

He enjoyed the respect of his fellow employees with whom he was popular and was regarded as sober, upright, dependable and one who never required much supervision. He was employed as a fireman and guard. It was his duty to see that every ship came into the yard had proper fire protection equipment aboard, fire hose, fire extinguishers, and general fire fighting equipment. It was his duty to see that the hose was placed on the bow part of ⁴³² the ship on different decks, where there was more than one deck, leading directly to and connecting with the fire hose connection on the pier.

He was required to make occasional trips during his eight-hour shift to see that these hoses were still in proper condition and available for fighting fires. If a ship left the yard, he was required to go aboard approximately one half to three quarters of an hour before leaving time and clear the ship of firefighting equipment, place it on the pier and store it until again needed. There are five piers at the Maryland Drydock Company from 600 to 800 feet long with no rails. The water runs from 15 to 20 feet in depth.

Ocean-going merchant vessels, tankers, and navy boats tie up at these piers. In addition to the piers there are four floating drydocks located one between each pier. On October 28, 1943, there were about eighteen vessels tied up at the Maryland Drydock. To get from the pier on the boats there are normal stairs with hand rails.

In some cases there is a temporary ladder placed on each side of the boat for the safety of the workmen in the event that something might happen. There are ladders on the pier to the bulwark of the ship. The sides of the ships which Krell was supposed to board are from one to two feet from the piers depending upon the tide and wind. The property of the Maryland Drydock Company runs about three quarters of a mile along the water front.

In addition to the boats that are tied up at the piers, there is a ferry that comes in on the east side of the Maryland Drydock property. A gate leads from the premises of the Maryland Drydock to the ferry pier. It is not possible for any one to get out of the property of the Maryland Dry-dock Company without going through a gate at which there are guards if the gate is open, or by boat other than the ferry. When a workman leaves the yard during working hours, his number is taken.

When a guard leaves the yard, his number is not taken, but the other guards are in a position to see him go in and out. The time for the change of shift on which Krell was working was ⁴³³ 4:30 P. M. He worked from 7 to 3 in the yard and from 3 to 5 on the parking lot outside the gate directing traffic. On the alleged date of death, Mr. Krell rode from his home to his work in the automobile of John A. McMullen, his immediate boss, a lieutenant of guards at the Maryland Drydock Company. He had been riding to work with McMullen every morning and home every evening for three or four months.

On his way to work he wore plain work clothing and a felt hat. He would work in the same clothes except that he would change to a uniform hat. He checked in at the plant and was seen by McMullen at 11 o’clock that morning. He was last seen at about 2 P. M. by Captain Burling L. Rogers who was in charge of plant protection and security.

At that time Rogers looked out of his office window which is below the level of the ground, and he saw Krell walking on the ground along the edge of the seawall toward No. 3 drydock. The seawall is of concrete and about the same width as the street, 20 or 25 feet wide, wide enough for two trucks to drive along it and adjoins the water and has a slope of about 12 inches. He was walking a little faster than usual, dressed in a raincoat and with a rain cover over his cap. Walking along anywhere in the yard would have been in line with his work.

Rogers does not know whether he had on rubber boots or not as he could not see below bis knees. The guards usually wore rubber boots in rain or snow. It had been raining all that day, off and on. At the time Krell -was seen by Rogers, it had cleared off somewhat, but it was probably misty.

When Krell failed to show up at the parking lot about 3:15 P. M., McMullen began to inquire in the yard to determine if he had been seen. Neither the guard whom Krell was supposed to relieve at that time nor any of the guards on the piers or at the entrance gates had seen him. CaptainRogers, about 5 P. M., received a call stating that they could not locate Krell. Immediately a searching ⁴³⁴ party was organized throughout the yard in all the buildings everywhere in the yard, on the ships, around the water front, on the parking lot and everywhere where it was thought he could be.

The day shift was kept overtime that night and about eight men stayed until dark, and they searched every ship there. Instructions were issued as each shift came in to search the ships, and a detail was assigned as a searching party. The Baltimore City Police Department was notified, and the police boat proceeded to drag around the piers and along the seawall and around the drydocks. The police boat of the Maryland Drydock Company continually patrolled in and around the piers.

About two days later a diver was called in to go down around one of the piers, and drydocks. A few days later a long line equipped with welding rod hooks was seesawed from one side of the drydock to the other. Captain Rogers testified that he does not know of anything that could have been done to locate Krell that had not been done and further that everyone in the yard was looking for him and that there were from forty-five hundred to five thousand men employed there. Krell’s locker was searched and in it were found his hat and shoes worn to work by him that morning.

His work card showed that it was not punched out that day. Testimony was offered by Dr. Robert Lee Graham, specializing in post mortem examinations, that in cold weather a drowned body often does not come to the surface, but in the springtime when the water gets warmer, bodies usually rise to the surface. Edward B. Kilchenstein, a detective sergeant of the Baltimore Police Department, testified that Krell’s description was placed on a teletype, given to all the districts in Baltimore City, placed on lookout sheets, and sent through the mail to forty-three cities. Although a year, with the exception of nine days, had elapsed between the date of Krell’s disappearance and the date of judgment, according to the testimony he has never been seen since. ⁴³⁵ As no one could leave the property of the Maryland Drydock Company by land without going through a gate at which guards were stationed and as he was not seen to pass through these gates, the conclusion of this Court from the facts here presented in this case is that at the time of his disappearance, he was “fenced in” and occupied a position similar to one who disappears on a ship.

By Code 1939, Article 101, Section 79 (c) there is a presumption that the death, if it occurred, was not occasioned by the willful intention of the employee, himself, or of another. The appellant is faced with certain presumptions. When a person has been shown to have been living at a given time and has not been absent or unheard of continuously for seven years, the continuance of life will be presumed until the contrary is proved or inferred from the nature and circumstances of the case. Jones on Evidence in Civil Cases, 4th Ed., Sec. 60; Schaub v. Griffin, 84 Md. 557, 564 , 36 A. 443 ; Robb v. Horsey, 169 Md. 227, 239 , 181 A. 348 ; Lachowicz v. Lechowicz, 181 Md. 478 , 30 A. 2d 793 .

By Article 101, Section 70 of the 1939 Code, the decision of the Commision is prima facie correct, and the burden of proof is on the party attacking that decision. It has been frequently held by this Court that the burden of proof is upon the party attacking it to show error in the decision of the Commission which must on appeal be taken as prima facie correct. Jewel Tea Co. v. Weber, 132 Md. 178, 182 , 103 A. 476 ; Beasman & Co. v. Butler, 133 Md. 382 , 105 A. 409 ; Stewart & Co. v. Howell, 136 Md. 423 , 110 A. 899 ; Thistle Mills, Inc. v. Sparks, 137 Md. 117 , 111 A. 769 ; Todd v. Easton Furniture Co., 147 Md. 352 , 128 A. 42 ; Atlantic Refining Co. v. Forrester, 180 Md. 517, 523 , 25 A. 2d 667 . In the instant case the facts were proved without contradiction, and in such cases where there is no dispute as to any material inference of fact, the Court may decide the issue as one of law.

Beasman & Co. v. Butler, supra, 133 Md. 387 , 105 A. 409 ; Harrison v. Central Construc ⁴³⁶ tion Co., 135 Md. 170, 180 , 108 A. 874 ; Schemmel v. T. B. Gatch & Sons, etc., Co., 164 Md. 671, 675 , 166 A. 39 . In the case at bar, although there is no dispute as to the facts, there is serious dispute as to the inferences to be drawn from those facts. Todd v. Easton Furniture Mfg. Co., supra; Schemmel v. Gatch & Sons, supra, 164 Md. 673, 675 , 166 A. 39 ; Moore v. Clarke, 171 Md. 39, 46 , 187 A. 887 .

It was said by this Court in Schemmel v. Gatch & Sons, etc., Co., supra, 164 Md. at page 675 , 166 A. at page 40 : “But, as pointed out by Judge Pattison in Catherman v. Ennis [ 164 Md. 519 ], 165 A. 482 , where the facts proved before the commission are susceptible of a construction supporting the decision of the commission as well as a construction adverse thereto, the appellant on appeal has theoretically the burden of showing that the commission drew the wrong inference, but that is more a rule of logic than of law.” This Court here is not called upon to render a decision (1) as to whether Theodore H. Krell died on the date alleged or (2) whether his death arose out of an accidental personal injury sustained in the course of his employment. It is our duty to decide whether there was legally sufficient evidence such as to give the jury the opportunity under proper instructions as to burden of proof to determine those questions upon the facts presented and the material inferences of facts therefrom. (1) The case of Tisdale v. Connecticut Mutual Life Ins. Co., 1868, 26 Iowa 170 , 96 Am.

Dec. 136 , a leading-case, involved a suit on a policy of life insurance upon the life of one Edgar Tisdale. He was a young man of excellent character, habits, fair business prospects, well connected, and of the most happy domestic relations, and owed little money. He had the entire affection of his wife, confidence of his friends, and lived in apparent happiness with no visible cause to break his domestic and social ties. On September 25, 1866, he visited Chicago on business and was last seen by an acquaintance on a corner in that city in the afternoon of that day.

Not the faintest trace of him had been found at the time of the ⁴³⁷ hearing in December, 1868. A large reward had been offered through the newspapers, and detectives were employd to search for him without results. The latest declaration of his intentions was to the ffect that he expected to leave Chicago the day of his disappearance to join his wife. His valise was found at his hotel containing clothing and other articles usually carried by travelers.

His hotel bill was unpaid. The Court said in that case at pages 175 and 176, of 26 Iowa, 96 Am. Dec. 136: “The questions for our determination in this case relate to the correctness of the instructions given by the court to the jury. The first instruction announces the rule that the death of an absent person cannot be presumed, except upon evidence of facts showing his exposure to danger, which probably resulted in death, before the expiration of seven years from the date of the last intelligence from him; and that evidence of long absence without communicating with his friends, of character and habits, making the abandonment of home and family improbable, and of want of all motive or cause for such abandonment which can be supposed to influence men to such acts, is not sufficient to raise a presumption of death.

The instruction is not in accordance with the true rule of evidence, and is erroneous. The error is evidently the result of an improper construction of the familiar rule of evidence, that, when a person has not been heard of for many years, the presumption of duration of life ceases at the end of seven years (2 Starkie’s Ev. 361), and an attempt to apply it to the facts in this case. The rule by no means limits the presumption of death to an absence of the person whose existence in life is in question without tidings from him for the space of seven years; nor does the modification of the rule laid down in the cases cited by defendant’s counsel, that such absence for a shorter period, if the person is shown to have been' in peril, will raise a presumption of death, exclude evidence of other facts and circumstances which tend to establish the probability of his death.” ⁴³⁸ The Court held that facts and circumstances relating to character and prosperity were admissible to explain the conduct of such an honored and upright citizen who apparently had no reason to wantonly abandon his family and friends. And further at page 177 of 26 Iowa, 96 Am.

Dec. 136: “The competency of evidence of the character above indicated, from which the fact of the death of an absent person may be found within the period of seven years, is well sustained by authority. 2 Greenl. Evid., Sec. 278; Angell on Fire & Life Ins., Sec. 351; Doe v. Flanagan, 1 Kelly, 543 ; White v. Mann, 26 Me. 376 ; Smith v. Knowlton, 11 N. H. 197.”