Thompson v. Standard Wholesale Phosphate & Acid Works, Inc.

Mitchell, J., delivered the opinion of the Court. This is an appeal from a judgment of the Superior Court of Baltimore City, on the verdict of a jury, reversing a decision of the State Industrial Accident Com ³⁰⁸ mission, under which the claimant, Anna C. Thompson, was allowed compensation by reason of the death of her husband. The appellant on March 27th, 1937, filed her claim with the State Industrial Accident Commission alleging that her husband, John C. Thompson, died on March 7th, 1937,- así a result of an injury sustained by him on May 2nd, 1936, arising out of and in the course of his employment with Standard Wholesale Phosphate & Acid Works, Inc., employer, the insurer of the employer being Liberty Mutual Insurance Company. The hearing was held by the commission on July 11th, 1939, and the order allowing compensation passed on July 25th, 1939.

From that order an appeal was taken to the Superior Court of Baltimore City, and there submitted to the jury upon issues as follows: (1) Whether the deceased employee sustained an accidental injury arising out of and in the course of his employment by the employer ? (2) Was the death of the employee the result of an accidental injury arising out of and in the course of his said employment? As to the first issue the jury answered “yes,” and to the second their answer was “no”. The testimony tends to show that the deceased husband of the appellant, for several years prior to the date of his alleged injury, was employed as a butcher, engaged in skinning horses and dogs, cooking the carcasses of the animals, and preserying their hides.

He worked in what was known as the “horse house,” and on May 2nd, 1936, while descending a ladder, it slipped, causing him to fall and injure his right side at the end of his. ribs. The testimony also tends to'show that the ladder was from six to eight feet long, and was not stationary; that the distance which the deceased fell was from eighteen inches to half the length of the ladder; but whether he struck a radiator or the ground in the course of his fall, the testimony is conflicting. Apparently but one witness was with the employee at the time of the acci ³⁰⁹ dent, and later he was found sitting on a bench holding his right side, it being at that time that he gave the above narrative as to the cause of his injury. Ten or fifteen minutes after the accident the injured employee was sent by the superintendent of his employer to Mercy Hospital, in Baltimore City, where he was seen by Dr. Wise, who had previously had indirect professional contact with the employee.

Dr. Wise examined him and he detailed to the doctor the manner in which the accident happened, as shown by the hospital records, explaining that he was at the time half way up a seven foot ladder; that it slipped on some grease, causing it to fall suddenly, and that he fell, hitting the upper part of his abdomen against a radiator. The health record of the deceased prior to the occasion of his accident tends to show that on January 11th, 1936, he suffered an ailment which was diagnosed at Mercy Hospital as chronic bronchitis; on March 19th, at the same institution, a diagnosis showed chronic bronchitis and chronic myocarditis. On March 21st, 1936, he was admitted to the above hospital and received treatment until April 4th, 1936, when he was discharged. He returned to work and worked until May 2nd, 1936, the date of the accident, when he was again admitted to the hospital, treated, and discharged sixteen days later.

On May 21st, he again assumed his duties at the phosphate and acid plant, working there with but slight loss of time, other than legal holidays, until January 8th, 1937, when he was first admitted to Franklin Square Hospital, from which latter institution he was discharged on January 21st, 1937; thereafter, on February 1st, 1937, resuming his work and pursuing the same with but slight loss of time, except holidays, until February 28th, 1937, when he re-entered Franklin Square Hospital and was there treated until the date of his death. During the course of his successive treatments in the two hospitals, Mr. Thompson came in contact with at least six doctors who were connected, respectively, with ³¹⁰ said institutions, and who testified as experts, as well as from their own personal knowledge of the physical condition of the deceased employee, upon the respective occasions on which they treated him or made observations of his case. Of the numerous ones reserved, exceptions by the appellant during the course of the examination of said doctors forms the basis of nearly all of said exceptions. Other exceptions found in the record, however, relate to other evidence adduced at the trial, and in addition to these, exceptions were, respectively, reserved to the rulings of the trial court upon the prayers, and to its action in permitting one of counsel for the appellees, in his closing argument, to inform the jury that the State Industrial Accident Commission, in reaching its decision, did not have before it the opinions of Drs.

Smith and Peters, to the effect that there was no causal connection between the death and the accidental injury of the employee. Henry C. Fritz, assistant superindentent of the employer, testified as to the indicated character of the work in which Thompson was engaged. Mr. Fritz recalled the occurrence of May 2nd, 1936, stating that Thompson claimed to have fallen from a ladder about noon; the witness had a talk with Thompson, who stated “that he was coming down this ladder and slipped and fell and struck his right side at the end of the ribs, against the radiator.” A photograph, showing the horse plant in which Thompson worked and the position of the ladder and radiator as of the date of the accident, was admitted in evidence, and the witness stated that Thompson claimed “the ladder slipped and threw him.” Work cards from which the witness testified tended to show that Thompson returned to work on May 21st, 1936, worked practically full time, legal holidays excepted, until January 8th, 1937, when he went to Franklin Square Hospital, returning to work on February 1st, 1937, and made like time until February 28th, 1937, the date on which he entered Franklin Square Hospital the second and last ³¹¹ time. And the witness stated that April 13th, 1936, was the first day on which Thompson worked subsequent to April 4th, 1936, when he was discharged from Mercy Hospital; that the duties of the witness brought him past the horse plant maybe two or three times a day and that, on the occasions when Thompson was working, he was doing his work as usual.

Caleb Pinkine, foreman in the plant, testified that Thompson first went to Mercy Hospital on January 11th, 1936; he then complained of “pains in his stomach like it was gas”; when he returned he reported that his trouble was bronchitis, he had a bottle of medicine and worked the balance of that day; that he returned to Mercy Hospital March 19th, 1936, and came back to work April 13th, 1936; that he worked from then on to the date of the accident. On that date he explained that at about 12:30 P. M. he was advised by another employee of the plant that Thompson “had slipped and fell down a ladder”; that he went to the horse factory to see what had happened and saw Thompson sitting on a bench “complaining he hurt his side, * * * he said he slipped on the iron ladder”; that he claimed he fell off the second rung of the ladder, a measured distance of eighteen inches from the ground; he was holding his right side; but “would not show us anything, any injuries. I asked him, but he never showed us.” Further testifying, the witness stated that Thompson said he struck the “L or elbow on the radiator” as he was descending the ladder face forward; that William Lewis, the only eye witness to the accident, was then dead; that Thompson was sent to MerGy Hospital the date of the accident, released therefrom May 18th, and returned to work May 21st. When asked on direct examination the kind of work Thompson did from then on, the reply was: “He did his regular run of work from then on.” He was then asked: “Did you notice any difference in the work he did from that time on, from what he had done previously?” And his answer was: “No, because the work was slowing up to what it had been previous, due ³¹² to less horses dying.” Testifying further, the witness stated that Thompson worked under him from May 21st, 1936, to the last day on which he worked; that he was first sent to Franklin Square Hospital on January 8th, 1937, and that he resumed work again on February 1st, 1937; was next sent to the same hospital on February 28th, and died March 7th, 1937.

On cross-examination, the witness was confronted with an apparent variance between his testimony in chief and testimony he had previously given before the accident commission, (a) in that he had not there stated that Thompson refused to let him see the injury; (b)' in that before the commission he was asked: “Did he say he struck the radiator pipes?” And his reply was: “He didn’t tell me he struck the radiator pipes”; and (c) that before the commission the witness stated, in substance, that he did not ask Thompson what he fell against and that Thompson did not tell him what he struck. It may be added that counsel for the appellees at this point in the testimony admitted the above answers of the witness before the commission. Dr. Walter B. Wise, produced on behalf of the appellees, testified that he was chief surgeon at Mercy Hospital ; that he had in his possession all the records of the hospital with respect to Thompson’s case; that they showed that Thompson was first treated in the outpatient department for chronic bronchitis and given a standard cough mixture; that Thompson had complained that “gas from stock seems to interfere with breathing”; that according to the records his next connection with Thompson’s case was on March 19th, 1936, through receipt of the original hospital record of that date from the out-patient department; that the record showed the following: “Nature and extent of injury, chronic bronchitis, with emphysema,” explaining that chronic bronchitis with chronic myocarditis “means heart infection with edema, or swelling of the ankles”; that edema and myocarditis are terms indicating heart disease; that to develop edema of the ankles the_ heart affection would ³¹³ have to be of some duration; and that he did not have personal 'contact with the patient on either of the above occasions. Thereupon the Mercy Hospital records of the case were admitted in evidence; the diagnosis on the admission of March 21st, 1936, being “Arterio-Sclerotic Cardio-Vascular Disease and accompanying condition of Dental Caries.” His discharge note as of April 4th, 1936, showed that his course in the hospital was “uneventful”; and that “weakness and swelling of legs with dyspnea disappeared on bed rest.” The report also showed a condition at the time of discharge as “improved.” Stating that he did not recall having had direct contact with Thompson upon the occasion of his first admission to the hospital, Dr. Wise then testified that he saw him on May 2nd, 1936, when he was again admitted; that his record showed that the patient then stated that while on a ladder it slipped causing him to fall; that in some way it was brought to his knowledge that Thompson had been a patient at the hospital on a previous occasion with heart disease, and he then looked him over for injuries and did not find any; the witness did not find any bruises or contusions; made a cursory examination with respect to the patient’s heart, but no tentative findings; that he saw Thompson again between May 2nd and May 6th, but did not meanwhile treat him.

A letter which he wrote to the insurer was admitted in evidence; the purport of which was to advise that as of May 6tht 1936, the employee was then a patient in Mercy Hospital; the details of the accident as stated by the employee; that the latter had previously been a patient in the hospital for a bad heart disease, and that the fall had upset his heart condition very badly. The letter concluded as follows: “The outlook is grave. How much the accident had to do with his present condition, of course, is difficult to say.” The witness stated that he saw Thompson from time to time, and that he was discharged from the hospital as “improved,” the diagnosis being arterio-sclerotic cardio-vascular disease, cardiac hypertrophy. ³¹⁴ Dr. Wise was further examined as to the condition of the employee for the purpose of eliciting an expert opinion from him, and upon signifying that he could not answer a hypothetical question then propounded to him, without qualification to a considerable degree, and without considering the opinions of Dr. Smith and Dr. Peters, two other physicians who had also examined the employee, he was withdrawn as a witness, and Dr. William H. Smith was called on behalf of the appellees. Turning now to the consideration of the above exceptions, in the order of their sequence (it being noted that exceptions Nos. 1, 39, 40, 42, 43 and 64 have been abandoned), it is observed that exceptions 2 to 13, inclusive, relate to rulings upon evidence during the course of the examination of Dr. Smith, the physician in charge of Franklin Square Hospital upon the occasions when the appellant’s decedent was admitted therein.

The doctor testified that the two admissions of Mr. Thompson were under his general supervision; that he had with him the hospital notes in both cases, but that with respect to the significant parts of the first hospital record, the notes were made by his assistant, Dr. Schreiber, who was then present; that the first diagnosis of the case was arterio-sclerotic myocarditis; that the first admission was on January 8th, 1937; that the patient was discharged twenty-one days later; that the history of the case showed that the patient complained of swelling of ankles and shortness of breath; that he made no reference to any accidental injury; that he got along nicely at the hospital and was discharged as being “improved,” which meant that the patient “had recovered from the breakdown his heart showed”; that he examined the patient while he was at the hospital and found that he had a general hardening of the arteries which was manifest in his heart, and which, in his opinion, was a condition of long duration. The witness then proceeded to detail the facts connected with the second admission to the same hospital, testifying that the patient was admitted on February ³¹⁵ 28th, 1937, and died on March 7th, 1937; that Thompson was under his care; that his complaint was shortness of breath and swelling of the ankles; that he stated that up to two weeks prior to his second admission he felt well; had been working and his ankles started to swell; that he then began to suffer shortness of breath and had to sit up at night to catch his breath; that the diagnosis on the hospital chart showed myocarditis with decompensation, lobar pneumonia with effusion accompanied with mitral insufficiency, all of which he described as meaning practically the same thing; and that the cause of death was “arterio-sclerotic myocarditis cardio vascular disease, right hydro-thorax and myocardial insufficiency,” which, except as to hydro-thorax-water in the chest, simply meant that the patient died of heart disease. Further examination of Dr. Smith elicited that while he was not a heart specialist he had had extensive experience in heart diagnosis and treatment; that he had read the Mercy Hospital records in the case; that he had heard the testimony of Dr. Wise, and that he was familiar with the Mercy Hospital record showing the first diagnosis of the case. On the second day of the trial, after an intermission in the examination of Dr. Smith for the purpose of introducing in evidence the record of proceedings before the State Industrial Accident Commission, which showed a compromise settlement of an original claim for compensation for the injury of May 2nd, 1936, filed by the employee and approved by the commission, Dr. Smith was recalled, and after being asked the usual preliminary questions was then asked the following hypothetical question: “Now, have you an opinion, using as a basis for your opinion only the facts testified to in this case, including therein your examinations and findings at Franklin Square Hospital on the two occasions, including therein all of the facts stated in the Mercy Hospital Records, which include the two histories, and particularly the ³¹⁶ statement by the decedent with respect to the alleged injury of May 2nd, 1936, and having in mind the fact that the deceased was at Mercy Hospital from March 21st to April 4th, at which time he was discharged as improved, and returned to work on April 13th, and returned there in Mercy Plospital at the time of the alleged injury, history of which was given in the record, from May 2nd to his discharge on May 18th, following which time he went back to work, to the same work on May 21st, and assuming as a fact that this deceased did laboring work regularly prior to his first hospitalization at Mercy Hospital, regularly after his return to work on April 13th up to May 2nd, when he went to Mercy Hospital the second time, and regularly from May 21st up to the time, approximately the time in January, 1937, when he first entered Franklin Square Hospital under your care; assuming that the work he did during the intervening time between May 21st and when he first came to Franklin Square Hospital was the same or substantially the same and the manner in which he did it was the same or substantially the same as before that visit to the Mercy Hospital; assuming the testimony you heard read in court this morning, and the deceased’s own statement with respect to his own condition on June 3rd, 1936, after the second discharge from Mercy Hospital; assuming the hospital record histories which you have at Franklin Square Hospital, assuming all of this data to be true, and excluding the opinions of any other persons, have you an opinion as to whether or not the alleged fall, as recited in the claim blank of the deceased employee, and as given in the Mercy Hospital entrance note on May 2nd, 1936, have you an opinion whether that fall or alleged injury had anything to do with John Thompson’s death?” Objection being made to the question, counsel for the appellees then added to it by saying to the witness: “We will add to the facts that you are to assume also the report of Mercy Hospital with respect to the findings of fact and the accident or out-patient department of March ³¹⁷ 19th. before the actual entry on the 21st, and we also add all the evidence of Mr. Pinkine, assuming to be a fact given in this case from the time he took the stand, which you heard in this court.” The court then asked the witness if he had heard Mr. Pinkine and the reply was: “I heard him say there was a question at one time whether the man had an injury.” Thereupon a colloquy ensued between counsel, the court, and the witness, indicating that the witness had not heard any of the testimony of