Kelso v. Rice , 146 Md. 267 ( 1924 )

Louis Rice, the appellee, was for about twenty-two years in the employ of Scott Kelso, one of the appellants. Kelso for most of that time was in the livery business, but later went into the garage business. Rice was a sort of hand-yman about the garage and also did repair work on several houses which Kelso owned and rented to tenants. Scott Kelso, trading as Kelso Garage, was insured under the Workmen's Compensation Laws.

The only evidence in the record of what the insurance policy covered is in the "certificate of insurance" of the insurance department of the State Industrial Accident Commission, giving the number of the claim, the name of the claimant and the name of the employer, the latter being designated as follows: "Employer — Scott Kelso, trading as Kelso Garage." Following this description the certificate further states: "According to the insurance records of the State Industrial Accident Commission, the above named employer was on the 7th day of December, 1922, insured in compliance with the provisions of the Workmen's Compensation Laws as follows: Travelers Ins. Co."

The Travelers Insurance Company is the other appellant. It is contended by appellants that "the policy issued to Kelso by the Travelers Insurance Company was to cover the employment of Rice and other employees at the garage."

The accident out of which this case grew happened on December 22d 1922, while Rice was working on the roof of a shed which he was building at Kelso's place of residence for his son.

The claim was allowed by the Industrial Accident Commission and, on appeal to the Circuit Court for Allegnay County, the finding of the commission was sustained by a jury, and the court passed an order overruling a motion for a new trial, and ratifying and confirming the award of the commission. From that judgment this appeal was taken.

It appears from a record of the proceedings before the commission, filed in the case on appeal to the circuit court, that the notice of the hearing sent by the commission was as follows:

"Baltimore, Maryland, March 22d 1923. "Mr. Louis R. Rice (Claimant), "La Vale, Long, Allegany Co., Md. "Scott Kelso, trading as Kelso Garage (Employer), "S. Liberty St., Cumberland, Md. "Travelers Insurance Co. (Insurer). "T.C. Gennary, Esq., 316 Munsey Building, Baltimore, Md.

"Relative to Louis R. Rice, injured December 7th, 1922, while in the employ of Scott Kelso, trading as Kelso Garage. A hearing in this case has been requested by some of the parties interested, on the following grounds:

"(1) To determine if the condition suffered by this party, and disability, was caused by an accident arising out of and in course of his employment.

"This hearing will be conducted by the Commissioner under the authority of the Commission, on Tuesday, April 3rd, 1923, at 9.15 A.M. at City Hall, Cumberland, Md.

"Please accept this notice to be present if you so desire, and notify the Commission if you have any witness whom you desire to have summoned; also sign, detach and mail to this Commission the attached form of acknowledgment.

"State Industrial Accident Commission. "A.E. Brown, Secretary."

The award of the commission was as follows:

"A hearing was granted and held in the City of Cumberland on April 3rd, 1923, to determine the following issue raised in the above entitled case by the insurer: (1) To determine if the condition suffered by this party, and disability, was caused by an accident arising out of and in course of his employment. At said hearing all parties were present and heard, and after due consideration of the testimony then taken the Commission finds for the claimant on the issue raised, and further finds:

"That Louis R. Rice was injured on the 7th day of December, 1922, while in the employ of Scott Kelso, trading as Kelso Garage; that his injuries consisted of injury to left arm and leg; that his average weekly wage was $28.00; that said injury arose out of and in the course of his employment, and that he was temporarily totally incapacitated as a result of said injury.

"It is, therefore, this 24th day of April, 1923, by the State Industrial Accident Commission, ordered that Scott Kelso, trading as Kelso Garage, employer, and Travelers' Insurance Company, insurer, pay unto Louis R. Rice compensation at the rate of $18 per week, payable weekly, during the continuance of his disability, subject to the provisions of the Workmen's Compensation Law, said compensation to begin as of the 11th day of December, 1922, and that final settlement receipt be filed with the Commission in due time.

"Robert E. Lee, "Geo. Louis Eppler."

The issues submitted to the jury in the circuit court, at the request of the defendants, were as follows:

"First: From the award of the said Commission as made in general.

"Second: Whether the business of the defendant Kelso, in which the plaintiff claimant was employed, was for the pecuniary gain of the said Kelso.

"Third: Whether the injury or accident arose out of and in the course of his (Rice's) employment.

"Fourth: Whether the injury, if attributed at all to the work, was an occupational disease."

The first and fourth issues were abandoned. The jury found for the claimant on each of the remaining issues. The only exception is to the ruling on the prayers.

Plaintiff offered four prayers of which the first and second were conceded, the third granted and the fourth rejected. Defendants offered eleven prayers of which the first, second, fourth, eighth, ninth and tenth were rejected, and the third, fifth, sixth, seventh and eleventh were granted. The Reporter is requested to set out all of the prayers except plaintiff's rejected prayer.

Taking up first defendants' rejected prayers, the first cannot be considered (1) because the record does not disclose any pleadings; (2) because, if there were any, such a prayer is necessarily based upon a variance between the pleadings and the proof; and as it does not specifically point out the variance, this Court could not consider the objection. Code, art. 5, sec. 9 A; B. O.R.R. Co. v. Walsh, 142 Md. 230; Heath v.Michael, 145 Md. 277; Taxicab Co. v. Hamburger, April Term, 1924.

The second is a demurrer to the evidence. It was properly rejected because it is inconsistent with plaintiff's second prayer, which was conceded. Hillers v. Taylor, 116 Md. 165;Smith v. Brown, 119 Md. 236; City and Suburban Ry. v.Clark, 128 Md. 281.

At the argument appellants raised the question as to whether plaintiff's second prayer was in fact conceded. But as it appears from the record to have been conceded and nothing to the contrary has been shown, we are concluded by the record.

There was no reversible error in rejecting the fourth, eighth, ninth and tenth prayers because, aside from specific objections, the subject and substance of these prayers and the law of the case were fully and clearly presented in the granted prayers.Spencer v. Trafford, 42 Md. 1; B. O.R.R. Co. v. Resley,14 Md. 425; Wilson v. Merryman, 48 Md. 328; Mason v.Poulson, 43 Md. 161; Pettigrew v. Barnum, 11 Md. 434;Etchison v. Etchison, 53 Md. 348; Horner v. Parkhurst,71 Md. 10; Regester v. Metcalf, 71 Md. 528.

Specifically, the addition of the words, in the fourth prayer, "and that the accident or injury complained of resulted from a risk reasonably incident to the employment," was unnecessary and calculated to mislead.

In the eighth, the use of the word "unavoidable" was erroneous, since the amendment of paragraph 6 of section 63 of article 101 of the Code by the Act of 1916, ch. 597.

In the ninth and tenth the requirement, as a condition to recovery by plaintiff, of the finding that defendant was engaged in the "business of repairing or building roofs," etc., was erroneous. It would be sufficient if he employed workmen to build or repair as an incident to any gainful business. There was error in granting plaintiff's third prayer, both because it omitted the essential requirement that the injury arose "out of the employment"; and because it assumed that it occurred during the course of plaintiff's employment, instead of submitting that question to the jury. But it was not reversible error for two reasons:

(1) It is clear that the purpose of that prayer was to deal with the conflicting testimony as to whether the paralysis was caused by the fall, or the fall was caused by the paralysis; and that the prayer was intended to be the converse of defendants' eleventh prayer. See Hartman v. Thompson, 104 Md. 409.

(2) The appellants were fully protected against any possible misleading effect of the errors in this prayer by the granting of prayers offered by them which correctly covered the whole case.Shipley v. Shilling, 66 Md. 558.

In reaching this conclusion we are not unmindful of the importance of observing great caution in holding that error in a prayer is not prejudicial, especially when the prayer goes to an ultimate finding.

Finding no reversible error in the rulings appealed from, the judgment will be affirmed.

Judgment affirmed, with costs to appellee.