Raleigh Manufacturers, Inc. v. Cantela

⁵¹⁰ McWilliams, J., delivered the opinion of the Court. Mrs. Cántela has a pain in her derriére, the result of an accidental injury sustained on 16 October 1964. A jury in the Baltimore City Court, on 19 November 1968, found that as a result of that injury she is “permanently and totally disabled.” The effect of the judgment entered thereon was to reverse the decision of the Workmen’s Compensation Commission that she had only a “40% industrial loss of use of her body.” Before us is the appeal of the employer (Raleigh) and its insurer (Lumbermens) . Mrs. Cantela (claimant) was employed by Raleigh in 1962 to sew labels in men’s suits.

In June 1963, as the result of a fall not connected with her employment, she broke her left arm. She returned to work with her arm in a cast and since she could not operate the sewing machine she was put to work in the office as a posting clerk. On 16 October 1964, her broken arm having fully healed, she “stooped down” to get a file out of the bottom drawer of her desk and “hit * * * [her] rectum on the filing cabinet which had been moved to the back of” her. Although in pain she continued working.

On the following day the injury became so painful she was sent to Bon Secours Hospital for examination and treatment. Sitz baths were advised but she said they gave her only slight and temporary relief. After a few months she went to see Dr. Kfoury, an orthopedic surgeon. He told her she had broken her coccyx; he recommended surgery.

The broken fragment was excised in March 1965. After a six week convalescence she went back to her job at Raleigh. On 15 November she had to stop working because her “condition was much worse, * * * [she] couldn’t sit at all.” In December she came under the care of another orthopedist, Dr. Reahl. Although his injections eased her pain somewhat, he referred her to a Dr. Brager who gave her “ultra-sound” treatments.

After that she went daily to the University Hospital where she received digital, trans-rectal massage of the Levator Ani muscle. In September ⁵¹¹ 1966 she was treated by a proctologicc, Dr. Monte Edwards, who, after examination, diagnosed her condition as “levator spasm of [the] Thiele type (coccygodynia).” He continued the levator massage treatments, noting some improvement at times and at times a regression. A little over four months later she stopped going to Dr. Edwards. Thereafter she received medication, spinal injections and “ultra-sound” treatments from other doctors.

She continued also with the sitz baths, taking, at times, as many as four during the day and five during the night. In January 1966 she tried to return to her job at Raleigh but after a day and a half she had to give it up. In the spring of 1966, following a doctor’s advice, she sought part-time employment. She said prospective employers laughed at her saying they didn’t have any work for her but that they would “get * * * [her] a good lawyer.” Shortly thereafter she applied for unemployment compensation and social security benefits.

The significant statement in Dr. Reahl’s testimony, more of which will appear later on, and as to which there seems to be no dispute, is as follows: “Q. What is and I don’t know if I have asked you, coccygodynia ? A. Frankly, I would like to know myself because 1 think if we know what the real pathology is, we probably would be able to do more about it. Basically, it’s a painful syndrome or group of symptoms about the base of the spine or coccyx which causes pain primarily on sitting and particularly in a slumped position or by putting pressure on the area. It may cause radiation in the buttocks and at times even down into the legs.

It’s always aggravated by stool, by bowel movements as general pressure. I have often wondered whether the coccyx itself is really the thing at fault in this area because in the amount of ligaments and the nerves and the muscles, I just wonder ⁵¹² if this is an innocent bystander, something that looks like it may be taken out because these people really don’t do well after a coccygectomy. In fact, a large majority don’t do well at all and my feeling is if this were the true cause, then certainly a high percentage, at least a reasonable percentage of them would be getting better. In fact, this is not true.

I have yet to find a patient I would do one on.” He said that in his opinion “she is totally disabled for economic reasons and [she] is not employable;” he felt that her condition is “directly related to the accident she sustained in October of 1964.” As the trial neared conclusion appellants sought to introduce into evidence the claimant’s answer to one of their interrogatories. The interrogatory and the answer are as follows: “13. State the amount reported as earned income in your income tax returns for each of the past five years and the District in which the returns were filed.” “13. Baltimore [District] 1962 Woolworth Co. $1865.13 (Part of year in Florida) 1963 Raleigh Mfg.

Co. 2509.32 1964 ” ” ” 3763.14 1965 ” ” ” 3021.84” The trial judge, Cullen, J., sustained claimant’s objection to the admission of both the interrogatory and the answer. I. The first of appellants’ three contentions has to do with Judge Cullen’s refusal to admit into evidence claimant’s answer to the interrogatory set forth above. Appellants insist that the purpose of their offer was legitimate. Bauman v. Woodfield, 244 Md. 207 (1966), is cited in support of the argument that such evidence is admis ⁵¹³ sible even though the adverse party has already testified so long as there is a legitimate purpose in the use of the questions and answers.

But we said much more than that in Bauman : “Rule 413 a 2 states, in essence, that at the trial or upon the hearing of a motion, any part or all of a deposition of a party, so far as admissible under the rules of evidence, may be used by an adverse party for any purpose. ‘Adverse party’ as used in this rule means a party to an action on the opposite side of an issue raised by the pleadings. In this case, the Wood-fields, as indicated by the pleadings, were on the opposite side of the Baumans. ‘Any purpose’ as used in the rule does not mean that the use of the deposition is limited to purposes of impeachment or contradiction. Billmeyer v. State, Use of Whiteman, 192 Md. 419 , 64 A. 2d 755 , and does not mean that the rules of evidence may be ignored. * * *. [First and third emphases added.] “Under Maryland Rule 413 a 2 defendant may put plaintiff’s deposition in evidence as part of the defendant’s case, so far as the deposition is admissible and relevant. * * (Emphasis added.) “However, we need not decide for the purpose of this case whether or not the court below committed error in not permitting counsel for the plaintiffs to read plaintiffs’ depositions in rebuttal since the plaintiffs called, without objection, Leonard Bauman to testify in his own behalf in rebuttal. Thus plaintiffs had full opportunity to elicit any testimony to explain, modify or clarify a claimed admission, contradiction or inconsistency in the testimony introduced from the prior depositions.

Under these circumstances the error, if any, was harmless. ⁵¹⁴ Snowhite v. State, Use of Tennant, 243 Md. at 310-11; Maszczenski v. Myers, 212 Md. 346 , 129 A. 2d 109 .” Id. at 219-221. (Emphasis added.) The record shows that the claimant was produced as a witness at the trial below, that she was cross-examined (and re-cross-examined) by appellants at length and in great detail, and that they “had full opportunity to elicit any testimony to explain, modify or clarify a claimed admission, contradiction or inconsistency in the testimony introduced from” the answer to the interrogatory. Appellants argue that the jury “should have had before it specific factual evidence of claimant’s substantial earnings following” the accident which, together with other things, “would [have] permit [ted] them to evaluate whether it was the industrial accident or lack of desire” which kept her unemployed. We are not impressed.

It is clear from her testimony that she worked for Raleigh all during 1964, except for a few days in October. In 1965 she worked until she was operated on by Dr. Kfoury in March. Six weeks later she came back and continued working until 15 November. Thus the jury was surely aware of the fact that she had “substantial earnings” following her accident.

Indeed counsel pursued this with some diligence in the cross-examination of the claimant. Reading her answer to the interrogatory would not have given the jury any information they did not already have or which could have been elicited from her. If Judge Cullen erred in this regard, the error was harmless. Bauman, supra; Smith v. State Roads Commission, 240 Md. 525 (1965).

II

Appellants next complain that Judge Cullen erred when he instructed the jury that there was “no legally sufficient evidence” in the case that the claimant, on 16 October 1964, “was suffering from any prior disease * * * [or that she then had] any permanent impairment due to prior accidents, disease or congenital condition which was likely to be a hindrance or obstacle to her ⁵¹⁵ employment.” It is true, as appellants point out, that, in June 1968, she could not operate the sewing machine because her arm was in a cast and that, as a result, she was put to work in the office as a posting clerk. It is also true that the mending of her broken arm, after Dr. Eaton operated on it, was uneventful and successful. It seems to us only one inference is to be drawn from the fact that, after her recovery, Raleigh did not send her back to the sewing machine to sew on labels; i.e., she was more useful as a posting clerk. The inference is fortified when it is observed that her weekly pay was increased by five dollars when she became a posting clerk.

Counsel for the claimant stresses appellants’ failure to submit, in the court below, the issue of apportionment, Code, Art. 101, § 36 (7) (1964 Repl. Vol.), citing Rule B43 of the Rules of the Supreme Bench of Baltimore City, which requires the appellee (i.e., Raleigh and Lumbermens) “within thirty days after the record is filed [in the trial court] [to] file his [its] proposed issues and any exceptions to issues proposed by the appellant.” Comment in this regard seems unnecessary. Richardson v. Home Mutual Life Ins. Co., 235 Md. 252 (1964).

We see no error here.

III

Appellants insist it was error for Judge Cullen to allow Dr. Reahl to answer a “hypothetical” question put to him by counsel for the claimant. To discern the lack of merit in this contention it will be necessary for us to set forth, in some detail, the testimony of Dr. Reahl who, it will be observed, is a diplómate of the American Board of Orthopedic Surgeons. He first saw the claimant on 9 December 1965. Relevant excerpts from his testimony follow: “A. Patient complains of pains in the base of her spine.

The patient states that on 16 October, 1964, while at work, she struck the base of her spine between the buttocks on a metal filing cabinet. She apparently had some bleed ⁵¹⁶ ing from the rectal area and was seen at Bon Secours Hospital. This bleeding persisted, off and on for about four to five days. It was spotting in nature.

Because