Miller v. Coles

Marbury, J., delivered the opinion of the Court. . The appellants, employer and insurer, appeal from a judgment entered in the Baltimore City Court upon the finding of a jury that the claimant-appellee, Charles A. Coles, sustained an accidental personal injury arising out of and in the course of his employment. The Workmen’s Compensation Commission, by its order dated July 31, 1959, found that the claimant did not sustain an accidental injury arising out of and in the course of his employment and, accordingly, disallowed his ⁵²⁵ claim. Thereafter, the claimant filed a motion for re-hearing, which was granted.

The Commission, by its subsequent order, dated November 3, 1959, affirmed its previous order of July 31, and thereby again disallowed the claim. From these two adverse decisions of the Commission, the claimant appealed to the Baltimore City Court. At the conclusion of the testimony in the trial, the appellants moved for a directed verdict, which was denied. The jury, in answering the sole issue submitted to them, found in favor of the claimant.

The appellants’ motion for judgment n.o.v. was also denied, whereupon the lower court reversed the two decisions of the Commission, and entered judgment in favor of the claimant. The claimant was employed six days a week as an outdoor salesman by Central Home Furnishings, one of the appellants. His duties consisted of soliciting orders and new accounts and selling on cash or credit terms such various and sundry items as furniture, general household articles, clothing and even groceries. He was furnished an automobile from which he displayed to prospective customers the merchandise for sale, and in which he stored the wares.

While his usual door-to-door promotion was in residential areas, the claimant testified that he “went from door to door, saloons, bar rooms, night clubs, gas stations, anywhere I could make a sale * * At approximately 1:15 a. m. on April 28, 1956, Coles parked his employer’s car at the side entrance to the Clover Club and went across the street to a sandwich carry-out shop called Big Bill’s, where he had a cup of coffee and a submarine sandwich. After thus fortifying himself, he went back across the street and entered the Clover Club. He testified that he had an appointment, made he knew not how, to “meet this lady” whose name he did not know, for the purpose of making a sale (which was never consummated, for apparently the appointee did not appear). No other business was transacted in the bar by claimant.

However, he had not given up hope that his customer would appear. A few minutes before the 2 a. m. closing time, though the testimony is in conflict as to the exact sequence of events, it appears that the claimant was asked by the club’s floor manager, James Wilson (also known as “Beau Jack”), to leave. It was Wilson’s duty at closing time to clean out the rest rooms, ⁵²⁶ douse the lights, and ask (or assist, if necessary) customers to vacate the premises. Coles testified he went up to the proprietor to secure permission to remain a few minutes after closing in hopes the prospective customer would arrive.

The owner acknowledged that he “may have” given the claimant permission to stay. Whatever the exact nature of the exchange between them, it was interrupted by Wilson, who grabbed claimant by the arm to escort him out of the club. There followed what the claimant carefully chooses to call a misunderstanding between these strangers in which Coles was knocked down and beaten and “Beau Jack” was bitten on the cheek. Claimant dashed across the street to Big Bill’s to ask to be taken to a hospital.

In answer to this request he was taken outside and shown the way to Johns Hopkins Hospital. After a brief interval, “Beau Jack” appeared and the fight was renewed, resulting in claimant being left unconscious. An ambulance was called for him, and “Beau Jack” went home. Once again we are called upon to construe Code (1957), Article 101, § 15 of the Workmen’s Compensation Act.

The action was tried below and the parties have presented the case to us on the basis that the injury must arise not only “in the course of” but also “out of” the employment in order for a claimant to recover benefits under the Act. Claimant does not contend, as was done in Md. Paper Products Co. v. Judson, 215 Md. 577, 589 , 139 A. 2d 219 , that Section 67 (6) of Article 101, Code (1957) (then Section 68 (6) of