Parks & Hull Appliance Corp. v. Reimsnyder

Mitchell, J., delivered the opinion of the Court. In the month of January, 1936, Charles Rudolph Reimsnyder, the appellee, was employed by the Parks & Hull Appliance Corporation, one of the appellants, as a helper in the employer’s business as a distributor for Westinghouse refrigerators and electrical appliances. During the spring and summer of that year the principal work of Reimsnyder was that of delivering and installing refrigerators, and in servicing or performing general work in connection with them. The mechanism of the refrigerant is sealed and in one unit, and in event of the failure of the unit to function, it was necessary to remove the mechanism from the ²⁸³ refrigerator and take it to the plant of the employer, from which point it was usually shipped to the manufacturer for overhauling and repair.

At times, when a unit would break down, fumes from chemicals used as refrigerants, among them sulphur dioxide, would escape, thereby endangering the health of those inhaling these poisonous gases; and the employer, recognizing this contingency, provided gas masks for those of its employees engaged in the line of work indicated. Reimsnyder testified that on July 7th, 1936, in company with a fellow employee, he was sent to change a unit on an old refrigerator in which one of the gas lines had been broken, and from which gas had been escaping for some time within a small basement room where the work of removing the unit was performed. At the time there was only one gas mask available, and this was used by the fellow employee, with the consent of Reimsnyder. Testifying as to the incidents connected with the above mission, the appellee stated that during the course of the operation the fumes were so intense as to render him quite sick.

It was an unusual case and caused him to go out and rest in his truck. After being in the open air a while, he felt better, and returning to the scene of his work, completed the job of removing the unit. He then testified as follows: “Q. What effect at that particular time did this sulphur dioxide gas have upon you? A. At that time I got very sick and it seemed like it clogged my breathing system, and I developed a cough, and it made me very sick.

At that time it got me so badly that I couldn’t hardly breathe.” The testimony of the appellee tends to show that usually the fumes due to the escape of gas were mild, and did not affect him; and he attributed the intensity of the presence of gas in the instant case to the fact that pitch, which was generally placed around the gas lines of a unit, had broken away from the lines, thereby enabling the gas to escape in greater volume. Further testifying, the witness stated that, after the above occurrence, every time he came in contact with ²⁸⁴ the gas, a cough and irritation in his chest would develop; that the cough gradually grew worse each time, “blood started to come with his phlegm,” and each time he ' coughed he had a sensation more or less like a cold. He continued to work with the same employer until December 9th, 1936, and his first visit to a doctor was in November of that year. On December 11th, 1936, an X-ray of the appellee’s lungs was made, which showed symptoms of tuberculosis; and upon the advice of a specialist he was admited to a hospital on December 16th, for the purpose of having one of his lungs collapsed.

He left the hospital on December 24th, 1936, and remained home under the care of a physician until the spring of 1937. According to the appellee, he did not discuss the matter of his claim for compensation with the agents of his employer until the spring of 1937. At that time he saw Mr. Roche, the treasurer, and Mr. Ford, the cashier, of his employer, on several occasions, “and each time I would ask them, they would either say that they would do something for me or see about it, or put it off in some other way.” “Q. Did Mr. Roche tell you to do anything about compensation? A. Well, each time — one time I would go in and he wouldn’t be there and I would ask Mr. Ford, * * * and the last time I asked him what I was to do about it * * * and he said he would see what he could do about it. “The Court: Who told you that?

A. Mr. Roche. * * * I would ask either Mr. Roche or Mr. Ford about compensation, and the last time I asked him about it he told me he would see what he could do, and then * * * he told me the only thing he could do would be for me to write him a letter stating my claim to him.” The appellee then testified that he complied with the above request on October 5th, 1937, and his letter appears in the record. By it, he advised his employer of his continued illness, “due to adverse working conditions” while in such employment, and expressed a desire to apply for compensation. By agreement of counsel, other correspondence was read into the record as follows: ²⁸⁵ On October 11th, 1937, Mr. Roche wrote the appellee that a letter received by him from appellee’s doctor was extremely weak, and suggested that: “In view of the tone of his (the doctor’s) letter, it will now be necessary for you to write us, making your claim for compensation in that way. We will then use your doctor’s letter to support your claim and submit the same to our insurance attorneys.” On October 23rd, 1937, Mr. Roche, as treasurer of the employer and in its name, wrote the appellee acknowledging the letter of October 5th, 1937, and stating: “Due to the fact that we have never had any complaint whatever from our employees, relative to ‘adverse working conditions,’ we will appreciate your being more explicit, so we may be in a position to determine the merits of your claim.

In view of the fact that any claims made by you must be referred to the compensation commission, we will appreciate your making sure that all letters you send are signed, as typewritten signatures can scarcely be considered in such a matter.” On October 26th, the appellee replied to the next above letter, detailed the circumstances of his illness, and expressed the request that the matter be given immediate attention because of the great need of the writer for some compensation. The latter letter was followed by a letter dated October 27th, 1937, signed by Mr. Roche as treasurer of the employer, in which the appellee was advised that all correspondence between the parties had been referred to Mr. Luden Lowndes, a representative of the firm carrying the employer’s compensation insurance. The letter concluded with the statement that the matter was then out of the employer’s hands and in the hands of its insurance agents. And the record reveals, according to the testimony of the appellee, that on October 29th, 1937, he called on Mr. Wells of the insurer’s firm, who filled out a statement of the claim which the appellee signed; that Mr. Wells told the appellee he would refer the claim to the insurance company and let him know in a short time later when he would hear from them; that a week or ten days later, Wells called the appellee, ²⁸⁶ told him to come to see him, and that when he did see him he was told by Wells that he was then unable to do anything with the company, but that he would see Dr. Tonolla and get his bill and the hospital bill, and call the appellee later; that a short time later Wells called him again, he went to see him, and was told he (Wells) was then unable to do anything with the insurance company but that he would try and see if they would pay part of the expenses and let the appellee know shortly thereafter.

Continuing, the appellee stated that he had never heard from Wells about the matter since the last interview. The formal application for compensation, which was filed by the appellee with the State Industrial Accident Commission on December 4th, 1987, sets forth an injury resulting from accident as of July 7th,-1936; total disability as of November 9th, 1936, extending to September 1st, 1937, said disability being due to a permanent injury to the applicant’s lungs caused by inhaling sulphur dioxide during the course of his employment by the appellant. When asked the reason for the delay in filing the above application, the appellee stated that he had relied upon the representations made to him by Roche and Wells, whose suggestions he had followed. The record is conflicting as to the date of total disability.

As has been seen, it is stated in the application to be November 9th, 1936, and yet the testimony of the appellee would seem to fix the date as of December 9th, 1936, — the last date on which, he testified, he worked for the appellant. The appellee first saw a doctor on November 17th, 1936, and was afterwards referred by that doctor to Dr. Tonolla, chief of the chest clinic of the University of Maryland, who first examined the patient on December 15th, 1936, and found that he had “a recent tuberculosis lesion that had re-action around it.” He testified that the appellee gave a history of having been accidentally exposed to sulphur dioxide gas, which in the doctor’s opinion “was directly the cause of the flare-up in this ²⁸⁷ tuberculosis lesion which produced the disability.” He described sulphur dioxide as a markedly irritant gas, very small quantities of which would produce irritation of the bronchial tree and of the lining of the air cells in the lung, resulting practically in a burn. Dr. Tonolla also testified that early in November, 1937, Mr. Wells came to his office, stating that he could not promise anything, but inquired, if he could get the appellee a part of his (the doctor’s) bill, would the later recommend that his patient settle on that basis? This suggestion, he stated, was promptly refused; and two or three weeks later he advised the appellee to file his claim with the State Industrial Accident Commission.

The case was heard by the State Accident Commission on December 30th, 1937, upon the following issues: (1) Whether the claim was barred by reason of failure to give notice of injury within ten days after the alleged accident: (2) whether the claim was barred by reason of failure to file claim with the Commission within sixty days after the beginning of disability; (3) whether the claim filed was barred by failure to file the same within a year after the beginning of disability; and (4) whether the disability from which the claimant was suffering was occasioned by an accident arising out of and in the course of his employment. The Commission found that the claimant was not barred by reason of his failure to comply with the requirements raised by issues 1 and 2, because such failures were excused by the Commission; and that the claimant’s disability was the result of an accidental injury arising out of and in the course of his employment, Victory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 379 , 128 A. 635 ; but that his claim had not been filed within one year after the beginning of the disability, and that such failure constituted a complete bar to the claim. From an order of the Commission disallowing the claim, an appeal was taken to the Superior Court of Baltimore City, in which tribunal, upon appropriate issues, the jury found: (1) That the disability resulted from an acci ²⁸⁸ dental injury arising out of and in the course of the claimant’s employment; (2) that his claim was not filed within one year after the beginning of the disability; (3) that the failure to file such claim was occasioned by facts and circumstances amounting to an estoppel; and (4) that the claim was filed within one year from the time when the facts and circumstances amounting to an estoppel ceased to operate. From a judgment reversing the decision of the State Industrial Accident Commission this appeal was taken.

Eleven exceptions were reserved by the appellants, ten of which relate to rulings on the evidence; the remaining exception relating to the ruling on the prayers. Of the exceptions pertaining to the first group, only the fourth and fifth, which cover the same question, were pressed in this court, and they will now be considered. During the course of the trial, and after the appellee had fully detailed his conversations, with reference to securing compensation for his injury, with Messrs. Roche and Ford, agents of his employer, and Mr. Wells, the representative of the insurer, and also after the correspondence to which we have referred, .relating to the claim for compensation, had been read into the record, the appellee was asked the following questions: • “Tell us whether or not there were any facts and circumstances on which you relied, which caused you not to file your claim with the State Industrial Accident Commission before November 15th, 1937?” Objection to the question was overruled and the witness was permitted to answer.

It is submitted by the appellants that the question was improper, and the contention is made that it was not for the claimant to determine in his own mind what facts and circumstances caused him not to file the claim, as he could only recite the facts and circumstances and have the jury determine whether or not they were sufficient to justify the claimant in relying thereon. The witness had previously detailed his negotiations bearing upon the same matter of inquiry to which the question was directed, and the jury, at the time it was ²⁸⁹ asked, had before it all the facts and circumstances which tended to account for his delay in filing his claim with the Commission; the question was therefore unnecessary, and conceding that it was unnecessary, it merely elicited a reiteration of the facts previously stated by the witness, the restatement of which facts was not prejudicial to the appellants. It is therefore our conclusion that there was no reversible error in the action of the trial court in permitting the question to be asked. The remaining exception is to the ruling of the trial court in overruling the special exceptions of the appellants to the appellee’s third and fourth prayers and granting said prayers, and in refusing to grant the appellant’s first, second, third, and fourth prayers.

By the appellee’s third prayer the jury was instructed that if they found from evidence that the claimant failed to file his claim with the Commission within one year after the beginning of his disability because the employer led him to believe that he should file his claim with the employer rather than the Commission, and further found that the claimant in reliance thereon did file his claim with the employer and not with the Commission within one year after the beginning of his disability, then the answer of the jury to the third issue should be yes. The special exception to this prayer is predicated upon the theory that it assumes as a fact, and as true, that the employer led the claimant to believe that he should file his claim with the employer rather than with the Commission; whereas that question should have been submitted to the jury, in connection with the related fact, which the exceptant concedes was submitted to the jury, namely, whether the claimant failed to file his claim with the commission within one year after the beginning of the disability. We do not regard