Maryland Paper Products Co. v. Judson

Bruñe, C. J., delivered the opinion of the Court. This case presents cross-appeals by Maryland Paper Products Company, the Employer, United States Fidelity & Guaranty Company, the Insurer, and by Dillie L. Judson, the Claimant, widow of Arthur C. Judson, the Employee, from a judgment of the Superior Court of Baltimore City, which affirmed a decision of the State Industrial Accident Commission finding that Arthur C. Judson, deceased, had sustained an accidental injury arising out of and in the course of his employment and making awards under the Workmen’s Compensation Act in accordance with that finding. This judgment was based upon a verdict of the jury which answered “Yes” to the sole issue, which was whether or not the Employee had sustained an accidental injury on August 13, 1955, arising out of and in the course of his employment. The Claimant’s cross-appeal is based upon the exclusion of evidence presenting a ground of recovery which was not submitted to the jury, and it was taken to protect her right to assert that ground of recovery in case of a decision adverse to her on the Employer’s and Insurer’s appeal.

There are two principal questions. The first is whether or not, in the circumstances of this case, under the so-called “proximity rule” the Employee was covered by the Work ⁵⁸¹ men’s Compensation Act when, on his way to work, he attempted to cross from a parking space on the opposite side of a public street to the Employer’s factory. The second is whether or not evidence of the Employee’s expressed intention to pick up a piece of equipment for the Employer’s use on his way to his place of employment should have been admitted. The Employer’s and Insurer’s appeal asserts that the answer to the first question should be “no”.

The Claimant’s cross-appeal asserts that the answer to the second question should be “yes”. The facts of the case pertinent to the proximity rule question are uncontroverted and substantially as follows: The decedent, Arthur C. Judson, at the time of the accident had been employed by the Employer for over nineteen years. His regular working hours began at 6:30 A.M. and ended at 5:30 P.M., except Saturdays when he left at 3:30 P.M. His duties, which he performed within the Employer’s factory, consisted of the maintenance, construction and repair of machinery. The premises of the Employer (and of apparently subsidiary or affiliated corporations) occupy all of the western side of the 1100 block of South Eutaw Street, in the City of Baltimore, and most of that side of the 1200 block as well.

The Employer’s factory building in which the decedent was employed is in the 1100 block. That block is bounded on the north by Cross Street and on the south by West Street. The Camden Station yard of the Baltimore & Ohio Railroad lies on the east side of the 1100 and 1200 blocks of South Eutaw Street. A railroad track used by the Employer for shipping its products runs down the center of South Eutaw Street.

Access to any part of the factory building may be gained either by an entrance on China Street, at the rear of the building, or by an entrance on South Eutaw Street. The use of either entrance is discretionary with the employees and is not restricted by any company rule. On August 13, 1955, the decedent left his home in Pasadena, Anne Arundel County, Maryland, at 5:45 A.M., his usual departure time, to drive to work in his pick-up truck. At this particular time the center of “Hurricane Connie” was passing slightly to the west of Baltimore and the weather ⁵⁸² was very bad.

The decedent arrived at the 1100 block South Eutaw Street about 7:40 A.M., approximately 70 minutes late for work. There was a box car standing on the railroad track in the middle of South Eutaw Street. The decedent pulled his truck off a little to the north and east of this box car and parked it diagonally on the east side of the street, opposite the factory, between yellow lines for parking spaces which were painted on the pavement. As the decedent was crossing the street on his way towards the entrance to the factory he was struck by an automobile which was being driven in a southerly direction by one Charles Thomas Dobry, Jr. The point of impact was 20 feet west of the east curb of the street and 6 feet east of the center of the street.

The decedent died of injuries received in this accident a little more than two months later, on October 16, 1955. Much of the argument concerns the control, or lack thereof, of the Employer over the parking space across the street from its factory. We shall therefore go into the evidence on that subject in some detail. The testimony suggests that there is some close relationship between the Employer and certain other corporations occupying the building in which the Employer’s factory is located and a building or buildings on the west side of the 1200 block of South Eutaw Street, but just what the relationship is (whether subsidiary, parent or affiliate) is not clear.

In 1953 a representative of one or more of these related corporations, apparently acting on behalf of all, asked the Department of Traffic Engineering of Baltimore City to permit angle parking, instead of parallel parking, on the east side of the 1100 and 1200 blocks of South Eutaw Street and on Cross Street and West Street. Such permission was granted by a letter dated October 23, 1953, directed to Maryland Cup Company, one of the related corporations, as to the south side of Cross Street and the north side of West Street, upon which the Employer’s factory abuts. The permission for angle parking was general as to the south side of Cross Street from Eutaw Street to the first alley west thereof, but it was restricted on the north side of West Street when shipping or receiving was being carried on for a ma ⁵⁸³ chine shop located south of West Street in the 1200 block of South Eutaw Street. On the east side of South Eutaw Street angle parking was permitted for approximately the entire length of the 1100 and 1200 blocks, except for two spaces, each of thirty feet and one in each block, opposite shipping entrances in the factory buildings on the west side, where only parallel parking was allowed.

Maryland Cup Company was authorized to do the painting of the parking spaces under the direction of the City Department of Traffic Engineering, and the painting was so done. The letter of October 23, 1953, stated that “this permit shall be in effect until revoked or suspended by the Director of Traffic and must be kept on the premises and open for inspection during all business hours.” The only portion of the several areas in which angle parking was to be permitted where it seems to have been contemplated that the Employer (or a related company) should exercise control over parking was on West Street opposite the machine shop shipping entrance. The Employer’s factory abuts on that space, but that area is not involved in this case. The primary objective of the Maryland Cup Company in seeking these parking arrangements was said by one of its officers to have been the convenience of “our organization”, including its employees.

The Assistant Director of the Department of Traffic Engineering testified that the conversation was primarily concerned with improving traffic conditions in the immediate area. He said there had been a good deal of double parking. He also stated positively what seems clear from the letter of October 23rd, that permission for angle parking could be revoked by the Director of the Department at any time. Facts pertaining to the question of evidence will be taken up when we come to that question.

The Employer and Insurer submitted prayers for a directed verdict, which were denied. This ruling raises the first of the principal questions — whether or not the “proximity rule” is ajrplicable in the circumstances of this case. The general rule with respect to injuries received by an employee while in the street in front of the employer’s prem ⁵⁸⁴ ises when going to of coming from work is set forth in an annotation in 85 A. L. R. 97-98 which states that “* * * The compensation acts have been very generally held not to authorize an award in case of an injury or death from a peril which is common to all mankind, or to which the public at large is exposed. * * *. And they do not as a general rule cover injuries received while going to or from work on public streets, where the employee has not reached, or has left, the employer’s premises.” Cf.

Wiles v. American Oil Co., 105 Pa. Super. 282 , 161 A. 467 , and Miller v. State Compensation Commissioner, 126 W. Va. 78 , 27 S. E. 2d 586 . Watson v. Grimm, 200 Md. 461, 467 , 90 A. 2d 180 . In Maryland several modifications of the general rule have taken place, but this seems to be the first in which the proximity rule has been invoked.

In Harrison v. Central Construction Co., 135 Md. 170, 180 , 108 A. 874 , an employee was injured on his way to work while attempting to board a train on which transportation was provided by the employer, without expense to the employee. The court held the accident was one arising out of and in the course of the injured worker’s employment. This conclusion was not altered on the second appeal when it was shown that the train in question was a regular passenger train operated by a common carrier, and not a special work train. Central Construction Co. v. Harrison, 137 Md. 256 , 112 A. 627 .

Cf. Watson v. Grimm, supra; Congressional Country Club v. B. & O. R. R., 194 Md. 533 , 71 A. 2d 696 . Another modification of the general rule is found in the case of Western-Dodson Co. v. Carl, 156 Md. 535 , 144 A. 708 (1929) in which it was held that a salesman who, after making calls on his customers, was injured while driving home to make business telephone calls, was acting within the course of his employment when he was injured. The court cited and followed McNicol's Case, 215 Mass. 497 , 102 N. E. 697 .

Cases dealing with the proximity rule and other modifications of the usual “going and coming” rule seems generally to recognize that each case must be determined upon its own facts. See Cudahy Packing Co. v. Parramore, 263 U. S. ⁵⁸⁵ 418, which is said to be the first case establishing the proximity rule; Watson v. Grimm, supra, in which this Court spoke of “the nature of the work and the terms of the contract of employment” and went on to say: “The word ‘employment,’ as used in the Workmen’s Compensation Act, includes not only the actual physical labor but the whole period of time or sphere of activities. So it is generally held that an injury arises ‘in the course of employment’ when it occurs within the period of employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incident thereto.” ( 200 Md. at 466 .) Some fairly well defined exceptions to or modifications of the “going and coming” rule have developed, as in the Harrison and Watson cases, supra, where the employer furnishes transportation, or in Reisinger-Siehler Co. v. Perry, 165 Md. 191 , 167 A. 51 , where an employee on call after regular hours was injured while on his way home after performing an extra, after-hours duty. See also Gallman v. Springs Mills, 201 S. C. 257, 22 S. E. 2d 715 ; Schneider, Workmen’s Compensation (1951), Vol. 8, Sec. 1710.

Schneider, op. cit., Section 1724, states the proximity rule in this way: “The proximity rule exception to the general going and coming rule is that an employee is generally considered to be in the course of his employment while coming to or going from his work, when, though off the actual premises of his employer, he is still in close proximity thereto, and is proceeding diligently at an appropriate time, by reasonable means, over the natural, practical, customary, convenient and recognized way of ingress or egress, either on land under the control of the employer, or on adjacent property with the express or implied consent of the employer.” Two of the cases relied upon by the Claimant emphasize ownership or control by the employer of the premises where the employee was injured on his way to or from work. Pacific Indemnity Co. v. Industrial Accident Comm., 28 Cal. 2d 329 , 170 P. 2d 18 ;