Manor Coal Co. v. Balchumas

⁴⁵⁵ Johnson, J., delivered the opinion of the Court. Claiming loss of eyesight as a result of an accidental injury sustained by him on February 18th, 1936, in the course of his employment by The Manor Coal Company, Adam Balchumas filed a claim for compensation with the State Industrial Accident Commission, and the latter, after a hearing, found on May 15th, 1937, that his disability was not the result of an accidental injury arising out of and in the course of his employment, by which finding the only issue before it was answered in the negative. From its order disallowing his claim, Balchumas appealed to the Circuit Court for Garrett County, and upon removal to the Circuit Court for Allegany County the cause was heard before a jury upon this issue: “Is the disability of which the Claimant, Adam Balchumas, now complains the result of an accidental injury arising out of and in the course of his employment by the Manor Coal Company on February 18th, 1936?” The jury’s answer to the issue being “yes”, the court thereupon entered judgment reversing the finding of the commission. From that judgment the present appeal is taken.

During the course of the trial appellant reserved three exceptions. The first of these relates to the allowance of a question to Dr. C. S. Gracey, no objection to the same question having been made before the commission; the second to the refusal of the court to strike out the evidence of the same witness, in so far as he expressed an opinion to the effect claimant’s disability was or could have been caused by an accidental injury arising out of his employment, while the third relates to rulings upon the prayers. By claimant’s prayer, the jurors were instructed that if they found from the evidence he sustained an accidental, personal injury on February 18th, 1936, arising out of and in the course of his employment by appellant, and such injury caused the disability of claimant for which compensation was then claimed, their answer to the issue should be “yes.” ⁴⁵⁶ Employer’s two prayers numbered “third” and “fourth” were rejected. Each required the jury to answer the issue “no”, the third prayer being predicated upon the legal insufficiency of evidence entitling claimant to recover; the fourth challenging the legal sufficiency of evidence to show that his disability arose out of and in the course of his employment by appellant.

Since, in reaching a conclusion respecting the correctness of the trial court’s action in rejecting these demurrer prayers, we will be required to review all evidence in the case which directly or inferentially supports claimant’s right to recover, we will, in our consideration of the third exception, likewise deal with the first ánd second. Balchumas, who is forty-eight years of age, had for twenty-seven years been employed as a coal miner, and during the last four and one-half years of that time, he was engaged in mining coal for appellant. On February 18th, 1936, while at work in the mine using a pick, he sustained an injury to his left eye when some foreign substance, dislodged by the pick he was using, became imbedded in its upper lid. He made a statement in connection with his claim for compensation to the effect that, while digging from the bottom of the mine, “dirt flew up in my eyes.” A Lithuanian by birth, he knows little English and speaks it with great difficulty and many of the specialists under whose observation he came testified that it was very hard to understand what he attempted to tell them.

We quote from his testimony as follows: “Q. Now speak slowly please, and just tell the commission what happened that day? A. I work in the mine digging, squaring it up for the machine, digging bottom off with a pick and I get dirt in the eye. Q. Now speak slowly. You were digging with this pick, digging the bottom and leveling the bottom?

A. Yes, digging the bottom and dirt fly off pick and hit me in the eye. Q. Which eye? A. Left eye (indicating). Q. Did it cause any pain at that time?

A. Hurt and pain, swell up, red, eye was red for long time, then it starts I no see, lots of spots in the eye. Q. When you were hurt that day, what ⁴⁵⁷ did you do? A. I got in the room and wash up and I went to Dr. Calandrella. Q. What day was that that you went to Dr. Calandrella ?

A. The same day. Q. When you were hurt that day, what time of the day were you hurt? A. Around dinner time, I don’t know exactly. I didn’t have a watch.

Q. Did you finish the day? A. No, sir—finish day, it was last for the day and we were digging bottom and we square up for machine and have no more coal as we were digging up the bottom for to take out, and dirt hit in the eyes. Q. And did you report this to anyone? A. I report to my foreman.

Q. When? A. That same time, I walk in the heading and find foreman coming along and I said X got sore eyes and can’t see, and the roadsman takes the dirt out, as much as he can, and then I was going home and go to a doctor. Q. What was the foreman’s name that you reported this accident to? A. Fitzhugh Burnell.

Q. Who was the roadsman who took the dirt out? A. Floyd Alpritz. Q. You had worked for this coal company for a period of four years, had you worked regularly? A. Before I was hurt?

Q. Yes. A. Yes, work every day the mine work. Q. Had you been troubled with your eyes before this? A. No, I have a little dirt in the eye for I guess a week, and then it was all right, then it was good again for a long time.

Q. And you could see well before this injury? A. Yes, see good everything. Q. Could you read a newspaper, that is a newspaper of your own language? A. Before, I read my language, but I cannot now.

Q. A short time or even a year or so prior to this accident, you took out an insurance policy, didn’t you,—were you not examined for insurance? A. Yes, two times. Q. When were your eyes examined? A. I forget that, last examination I guess maybe one year before I get hurt.

Q. Were your eyes all right at that time ? A. Yes, Dr. Calandrella, the same doctor, examined them, he knows.” He further stated that no one would give him work, because he could not see how to work; that he could not read a newspaper and could just see “a little shine sometimes”; that he could see nothing with his left eye and ⁴⁵⁸ could see only lights or yellow streaks with the right eye; further that he could not dig coal because of the condition of his eyes, and that, after being treated by Dr. Calandrella for his injuries, he was sent to a hospital at Keyser, West Virginia. There he was under the care of Dr. Bess, an eye specialist. He was then asked, “Now before February 18th, you were able to get around very well, were you not?

A. Yes, I was all right up to the day I was hurt.” On cross-examination he admitted having been examined by Dr. Harry Wasserman and by Dr. H. F. Graff, the latter an eye specialist of Baltimore. The testimony given by Dr. Calandrella before the commission was read to the jury and was to the effect that at the time claimant was injured he was appellant’s physician; on the evening of February 18th, 1936, claimant visited him and complained of an injury to his left eye; that he found a foreign body imbedded in its upper left lid which had caused “a little laceration of the eye ball in the medical aspect, that is to say towards the nose”; that the eye was then reddish and putting off water. He removed the foreign body, but found no evidence of any contusion of the eye ball and in four or five days the condition had entirely cleared up, but the claimant shortly after his first visit made complaint about both eyes, yet he could find nothing wrong with the right eye; that the foreign body which he did find had in his opinion no effect upon his vision, but, because of his continued complaints he, suspecting syphilis as a cause, sent him to a free venereal clinic, but could not get positive proof that he had such disease. It may also be stated that Dr. Wasserman of Baltimore, as a result of an extensive examination which included a blood test of the claimant, found nothing to indicate he was a syphilitic sufferer.

Dr. Calandrella had no recollection of having made an examination of Balchumas a year previous to the accident, but admitted that he might have made it. He further stated that he did not know whether at that time he had examined claimant’s eyes, but he might have done so. Nor did he recall that Balchumas immediately following ⁴⁵⁹ the injury complained of his vision, but admitted that he might have made such complaints. There was next read to the jury the testimony given by Dr. C. S. Gracey before the commission on March 18th, 1937.

Although qualifying as an expert upon diseases of the eye, Dr. Gracey had not until the day previous even seen claimant, and from examining his eyes he found nothing wrong with them externally, except that his pupils did not react normally to light. From that examination he estimated claimant’s visual loss from an industrial viewpoint to be about ninety per cent. He further stated that in his opinion the condition was permanent, and in response to another question stated he had heard the testimony of claimant and Dr. Calandrella. He was then asked this question: “Doctor, can you form or express an opinion, assuming the truth of all the testimony you have heard, as to what, if any connection, the injury the claimant suffered on February 18th, 1936, has with the disability that he now complains of,—can you form an opinion first?” And the court’s action in overruling appellant’s objection thereto occasioned the first exception.

His answer was as follows: “It is my opinion that the trauma that he received when the foreign body struck his eye is responsible for his present condition.” The argument that no objection to this question can be entertained by the trial court, since none was made to the same question at the hearing before the commission, is not sustainable, and an examination of the authorities cited in support of it will disclose that those decisions were announced after the passage of chapter 406, Acts of 1931, and chapter 508, Acts of 1933, under which on appeal from the orders of the State Industrial Accident Commission neither party could introduce original evidence, and such appeals were heard entirely on the record made before the commission. However, as pointed out by Judge Sloan, speaking for this court, in Spence v. Bethlehem Steel Company, 173 Md. 539 , 197 A. 302 , the repeal and reenactment of that section by chapter 545, Acts of 1935, had the effect of restoring chap ⁴⁶⁰ ter 587 of the Acts of 1927, thus restoring the rule announced in Standard Gas Equipment Corp. v. Baldwin, 152 Md. 321 , 136 A. 644 , holding that objections to questions could be made in the trial court, although not made to the same questions before the commission. See, also Baltimore v. Perticone, 171 Md. 268 , 188 A. 797 . We find no objection to the question as propounded.

It was merely preliminary, in the sense of having for its object the purpose of eliciting information as to whether the witness could form an opinion, but not to ascertain what the opinion was. If the appellant has in any way been injured by the answer, this is because it was not responsive to the question, and since no motion was made to strike it out upon that ground, no error is found in the ruling. From his cross-examination, the following appears: “Q. Why do you say that, doctor ? A. There was evidently some foreign body struck him in the eye, it didn’t necessarily have to lacerate to cause that,—he no doubt received a blow, it is my opinion he received a severe enough blow to cause a concussion that affected the optic nerve.

Q. You heard the testimony given by the claimant and Dr. Calandrella? A. Yes, sir. Q. Did you hear any evidence there was a trauma, a contusion or blow? A. Yes, sir.

Q. Was it read to you that the man had a contusion of the eye? A. It said he had a slight contusion. Q. In whose testimony was that? A. That was the doctor who examined him—as far as the laceration goes that could have occurred afterwards.

I don’t know the form of the object, but a