Owners' Realty Co. v. Bailey

Offutt, J., delivered the opinion of the Court. James Bailey died on December 2nd, 1925, from accidental injuries received on November 13th, 1925, whilst in the employ of the Owners’ Realty Company. Subsequently Mrs. Lulu Bailey, his widow, filed with the State Industrial Accident Commission, against his employer, a claim for compensation on the ground that the injuries which caused his death arose out of and in the course of his employment by that company. Hearings were had before the commission, and, at the conclusión of them, compensation was awarded to Mrs. Bailey for 277 7/9 weeks at $18 per week.

The employer and the insurer, on February 17th, 1926, appealed from that award to the Baltimore City Court and, on October 28th, 1926, offered to file in that court a “declaration” which the court on motion refused to receive. Later, on the same day, the defendants submitted nine issues, of which the court allowed the first and refused the others, and the case went to trial on the granted issue. The trial resulted in a verdict for the claimant, and, from the judgment on that verdict, the employer and the insurer appealed. During the trial two exceptions were reserved to rulings on evidence and one to the action of the court on the prayers.

These rulings, together with the court’s refusal to receive the “declaration” offered by the appellants, and its refusal of the ²⁷⁸ issues two to nine inclusive offered by them, are submitted by the record for review in this Court. The question presented by the court’s refusal to receive the so-called declaration offered by the appellant is without difficulty. At the time it was filed, the appellants had already taken an appeal in the manner usually followed in such cases, and no further proceeding of any kind other than the framing of suitable issues was needed to have the award of the commission reviewed by the Baltimore City Court. While its introductory part was in the form of a common law declaration, the paper asked for no judgment not demanded by the appeal, and had no place in the proceeding before the court.

In support of it appellants referred to a remark in Kelso v. Rice, 146 Md. 275 , to the effect that the record in that case did not disclose “any pleadings,” as an intimation that in such a proceeding as this there should be pleadings. But that remark was not an invitation to formulate a system of pleading, but a statement of fact. There are no pleadings in the accustomed sense of that word in such cases as this, because the statute does not authorize any, and none are needed. The proceedings before the commission, and upon appeal, are “informal and summary” (article 101, secs. 39, 56), and are of such a character that formal pleadings have no place in them.

Nor do we find any error in the court’s refusal to- grant the issues submitted by appellants, numbered two- to nine, which is the subject of the first exception. The granted issue was in this form: “Did the death of James Bailey result from an accidental injury which arose out of and in the course of the employment ?” The eight refused were as follows : “2. When James Bailey heard the cry of ‘fire,’ did he return towards Berry’s garage with the intention of helping some one whom he believed to- be on fire in the garage ? 3. Did the injury result from a risk common to- the p-ublie at large? 4.

Did the deceased Bailey’s work for his employ® require him to be at Berry’s garage at the moment ²⁷⁹ when he was injured? 5. If you answer the last question ‘yes,’ was the risk; of injury by fire in Berry’s garage connected with the work of the deceased, and did it flow therefrom as a natural consequence ? 6. Was there a causal connection between the conditions under which the deceased performed his work and the resulting injury? 1. Was the injury received while the workman was doing the duty which he was employed to perform? 8.

At the time of receiving the injuries, had James Bailey temporarily departed from the service of his. employment for the purpose of offering assistance to some one whom he thought to be on fire in the garage operated by Berry? 9. Was the risk which caused the injury in this case so incidental to the specific duties of Bailey’s employment that that risk was special or peculiar to that employment ?” An analysis -of these issues shows that the second and third were inconclusive and confusing. Such facts as that Bailey was injured while returning to help some one whom “he believed to be on fire>,” or that his1 injuries resulted from a risk “common to the public at large,” were not necessarily inconsistent with the theory that they arose out of and in the course of his employment, if that employment involved the duty of caring for his employer’s property against fire. The “risk” which he took may well have been “common to the public at larger,” but the consequences of his failure to take it might have resulted in special damage to his employer, and, in 'attempting to extinguish a fire which could have caused such damage, he may have been acting in the interest of his employer, even though incidentally he benefited some one else.

The fourth, fifth, sixth, seventh, eighth, and ninth issues were obviously comprehended by the granted issue, and were unnecessary. The real issue presented by the appeal was whether Bailey’s injuries arose out of and in the course of his employment. An affirmative answer to any one of these issues must have resulted in an affirmative answer to the granted issue, and a negative answer to any one of them must have resulted in a negative answer to the granted issue. The granted issue was completo and comprehended a finding ²⁸⁰ on all the questions submitted by the last six refused issues, and they were therefore superfluous and properly refused.

The needless repetition and multiplication of prayers in actions at law has been disapproved by this Court. Rosenkovitz v. United Rys. Co., 108 Md. 316 ; Wilson v. Kelso, 115 Md. 162 ; Knecht v. Mooney, 118 Md. 583 ; Levine v. Chambers, 141 Md. 336 . And the duplication of issues is even more objectionable in such oases as this, where the proceedings are more “informal and summary55 than in an ordinary common law case.

To understand the force of the remaining exceptions, all of which relate to the evidence and the prayers, a more extended reference to the facts before the court and jury is necessary. Without referring to- it in detail, it is sufficient to say that there was evidence offered tending to show these facts, which for convenience and brevity will be stated in narrative form. The Owners5 Realty Company is a Maryland Corporation, engaged in the development of real estate, and in connection with that business it buys -and sells land and builds and sells houses, and in the course of its business! it takes mortgages on houses sold by it, and in such cases continues to care for the property so sold until its investment is safe. On November 13th, 1923, it was engaged in the construction of a group- of houses on Littleton Road and Ellicott Driveway in Baltimore City, and in connection with that and other work employed James Bailey, the deceased, as a “working55 or “carpentering superintendent.55 Bailey’s duties in connection with that work, quoting Mr. Charles W. Hurst, president of the company, “consisted in seeing that the houses were properly built, looking after the pay roll, ordering material necessary for the construction of the houses, everything in connection with construction from the time they were started until they were completed, * * * general -superintendent, had charge of all materials on the ground, like hardware, tools, cement, lime, stone, labor.55 But he had other duties, and in comiection with them Mr. Hurst gave this testimony: “Yes, I might say the Owners’ ²⁸¹ Realty Company has mortgages on most of these houses on Ellicott Driveway, and many of the houses which have been sold in the last eighteen months.

There are minor repairs which had to be made and Mr. Bailey’s duties also covered looking for the little things that developed. * * * Q. Did you own any of the garages on that alley ? A. I have sold them all, but I have a second mortgage on all but three. Q. I did not understand just what you said Mr. Bailey’s duties were with reference to these houses on which you have the second mortgage? A. The houses have been sold so recently and, while our houses are all well built, little things' will develop, little minor defects, and we keep an organization for the purpose of trying to satisfy our purchasers until they reach the safety point.

After we sell a house we do not stop taking care of it.” One of the duties required of Bailey was to make out the pay roll of the workmen under his supervision, take it to his employer, receive the necessary funds, and pay all the workmen. In performing that duty he was accustomed to use his own automobile, and in speaking of that custom Mr. Hurst said: “Q. Mr. Bailey used his automobile in the course of his work ? A. Yes, and getting’ little orders and things he knew he needed in connection with the work, like a keg of nails, a bucket of cement, anything like that, he used his automobile for that purpose. Q. You knew about that?

A. Oh, yes. Q. Did your company contribute to the upkeep or running of the automobile ? A. Not to our knowledge. Q. He used it for his own convenience?

A. Yes, but we recognized the fact that he had a car and used it in connection with our business.” On the day of the accident, Bailey’s car, which was parked on Littleton Road, was out of repair, and, as he wanted to use it to take the pay roll to his employer’s office, he left it to go to a garage operated by Edward W. Berry, located on an alley several hundred feet from Littleton Road, to get a mechanic to repair it. He saw Berry, told him what he wanted, and he and Berry started to walk to his car. When they had gotten some three quarters of a block from Berry’s garage, they heard a cry of fire, and saw flames coming from ²⁸² an automobile in that garage. They both turned and started bach towards it, but just as Bailey reached the door of it a mechanic, who had been engaged in cleaning the motor of the car which caught on fire, threw out a bucket of flaming gasoline, and drenched him with it, so that he was enveloped in flames, and so badly burned that he died several weeks later.

The realty company owned or had mortgages on property “all around” the fire, and the houses which it was then building were only a few hundred feet away. After he was burned, Bailey told Dr. Sachs, who attended him, that he was in conversation right outside of the garage and he remembered he heard some one yell “fire”, and he ran to 'help; he thought some one was on fire, and when he got to the door the gasoline met him and it ran on his face and neck, and he pulled his coat down, and some people extinguished the flames, and they brought him to the hospital. The claimant’s theory of her right to compensation was that the company was interested in property endangered by the fire, and that, as its employee, Bailey, in attempting to help put out the fire, was acting within the scope of his employment for the protection of his employer’s property. To establish that theory she offered, among others, a Mrs. Naomi Green as a witness.

After having testified that “she bought a house from the- Owners’ Realty Company and that she was told by Mr. Jackson, the real estate man, when she moved in the house, if there was anything to be done, call on Mr. Bailey. * * * That Mr. Bailey made repairs on 'her house after she bought it from the Owners’ Realty Company; that he finished up the cellar steps and the beading around the stairs going up to the second floor and made other repairs on her house,” She was asked whether she had ever seen Bailey making repairs to- houses belonging to other people purchased by them from the Owners’ Realty Company. The court overruled an objection to that question, and the witness answered “yes,” that he did it because there was- no one else to do it. This evidence was relevant and material, and we find no error in this ruling, which is the subject of the second exception. ²⁸³ Mrs. Annie Oarstens testified “that there are two rows of garages across the alley in the rear of her house; this is a group of about ten garages; that there are two rows of garages and that Berry’s garage was in the second row from her house, but that the second row of garages are on a higher level than the first row and she could see them as well as the first row from her house; that she knew Mr. Bailey during his lifetime; that he was employed by the Owners’ Realty Company; that he made various repairs on her house for the Owners’ Realty Company,” that she had “seen him the day before; because he was working in my house the day before it happened, and on the day that it happened he was working in my house that morning * * * fixing doors, repairing doors, two doors.” She further said that she had seen Bailey on the morning of the accident, and had called to him that she wanted him to hang some doors, in her house. She was then asked whether Bailey had indicated that he had heard her.

An objection to that question was also overruled, and the witness replied that he had “waved his hand he would he there.” Assuming that this evidence was inadmissible, it was harmless, and that ruling, which is the subject of the third exception, was free from reversible error. The fourth and final exception relates to the court’s rulings on the prayers. The appellants offered eleven prayers, of which the first was granted and the others refused. These prayers fall into two groups, one, lettered A to E, pray a directed verdict for the defendants, while the others, numbered one to five, sought to have the jury instructed as to the legal significance and effect of the evidence before them.

These groups will be considered in inverse order. The underlying theory of the group of prayers lettered A to F appears to* be that the evidence in the case conclusively shows that Bailey, for purely altruistic and humanitarian motives, in no way connected with his employment by the Owners’ Realty Company, left that employment to assist in extinguishing a fire and to rescue from extreme peril one endangered thereby, and that injuries received in ²⁸⁴ the performance of that act were not received in the