Summit Timber Products Co. v. McKenzie

Collins, J., delivered the opinion of the Court. This is an appeal from a judgment of the Circuit Court' for • Allegany County reversing ah order-passed by the State Industrial Accident Commission,' which disallowed ■ the appellee’s claim for compensation for the "reason that it had not beeri filed within one- year ⁴³ after the beginning of disability, as required by Code, 1951, Article 101, Section 38. On November 25, 1949, the appellee and claimant, Raymond F. McKenzie, sixty-seven years of age, while employed by the Summit Timber Products Company, Inc., one of the appellants, was struck on the wrist by a falling pole or tree while within the scope of his employment. His claim for compensation having been denied by the Commission, he appealed to the Circuit Court for Allegany County.

The case was tried by the trial judge and a jury who rendered a verdict and judgment reversing the decision of the Commission. From that judgment the employer and insurer appeal. The appellants claim that there was not sufficient evidence to justify submitting to the jury the question of whether the failure of the appellee to file his claim within the time provided by the statute was induced or occasioned by facts or circumstances amounting to an estoppel of the appellants to avail themselves of such failure; and further that there was not sufficient evidence to justify the submission to the jury of the question whether Leroy Hessen, the superintendent, had authority to bind his employer by his statement about looking after everything for the appellee in connection with the alleged injury. Code, 1951, Article 101, Section 38, supra, provides that if a claim is not filed within one year after the beginning of disability, failure to do so “shall constitute a complete bar”, unless such failure was induced or occasioned by fraud or by “facts and circumstances amounting to an estoppel”.

The appellee claims such an estoppel. The only testimony in the case is that of the claimant and his wife, Lula McKenzie. The claimant testified as follows: He had worked for the employer for about two years cutting logs with an axe and saw and was also a boss and timekeeper. He said he was employed by Leroy Hessen, who was supposed to be superintendent over all the work of the Summit Timber Products Company.

He knew nothing about, this company except he ⁴⁴ was told that it was located in Uniontown, Pennsylvania. Mr. Hessen gave him his pay checks, showed him where to cut and what to cut, what days to work and what hours to work. He knew no one else in connection with the company other than Mr. Hessen. There was no one “higher than he on the job”.

He testified further that he was to report to Mr. Hessen in the event of an accident. On November 25th he was hit on the wrist with a dry pole or old dry tree while cutting logs. He went to see Dr. Hoke in Salisbury, Pennsylvania, the next day. Mr. Hessen did not come out in the woods to the job until Monday, November 28th, when he told Mr. Hessen about the accident and that he had better report it.

To this Mr. Hessen replied: “Never mind, Raymond, I’ll take care of everything.” After the injury to his wrist on November 25th he was unable to cut logs and from that time until January 1, 1950, when the work stopped in the woods, he acted only as boss and timekeeper. He went to see Dr. Hoke about every two weeks at the direction of Leroy Hessen. The claimant paid Dr. Hoke each time. When the work stopped in January he returned to his home near Avilton, Maryland.

During the latter part of March or first of April, 1950, Mr. Hessen went to appellee’s home and asked him to go back to work. He told Mr. Hessen that he could not go back to work and showed him his hand which was swollen. Mr. Hessen then said to him: “That is too bad. I’ll take care of it for you.

I’ll turn everything in for you.” About the tenth of April Mr. Hessen came to his home for the time book. He talked to the claimant and said to him: “Raymond, you have a bad hand and arm there and you had better go to the hospital.” Mr. Hessen further said: “You ain’t got nothing to worry about, Raymond, I’ll take care of everything.” He did not say that he had filed the claim for him, nor did he say that he had not filed it. That was the last he saw of Mr. Hessen. He further testified that he had never seen anyone else who had any authority to act for the company, had never been to the office of ⁴⁵ the company, did not know on what street in Uniontown the office of appellant was located, and did not know any of the people connected with the company except Mr. Hessen.

About the first of April he started going to see Dr. John B. Davis, of Frostburg, Maryland. Sometime about November 18, 1950, he went to see his attorney, because “I didn’t get no results from no one else. Didn’t hear from any one.” He therefore knew that “they didn’t turn it in.” No one sent him to see Dr. Davis. He said he did not consult his attorney previous to November, 1950, because he depended upon Mr. Hessen “doing the right thing for me.” He depended upon Mr. Hessen because “he was the one that said if anything went wrong I should notify him and he’d take care of anything.

I depended on him.” The claimant had reached the sixth grade in school. Dr. Davis in April diagnosed his trouble as blood poisoning. Claimant further said he wanted compensation. He wanted to file his claim and “they never fetched me no papers to file it.

I didn’t know where to file it or anything.” He thought Mr. Hessen “would take care of everything. He was good to me and I trusted him for everything.” Lula McKenzie, the wife of the claimant, testified that she recalled the occasion when her husband was hurt in 1949. His hand started to swell in April, 1950, and he then went to Dr. Davis. She further testified that Mr. Hessen came to see her husband in March and he wasn’t able to go back to work on account of his hand.

She thinks Mr. Hessen was at their house on three occasions. On each occasion her husband asked Mr. Hessen “to turn the accident in” and Mr. Hessen promised faithfully to do so. He said: “I’ll take care of everything, Raymond. Don’t you worry about a thing.” He spoke these words each and every time.

On April 10th, when Mr. Hessen arrived at their home the claimant had his hand in a tub of hot water and Mr. Hessen said: “You’ve