Kelso v. Rice

126 A. 93, 146 Md. 267, 1924 Md. LEXIS 137

• Court: Court of Appeals of Maryland
• Decided: June 21, 1924
• Status: Published

Opinion

AdKINS, J.,

delivered the opinion of the Court.

Louis Bice, 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. Bice was a sort of handyman aibo-ut the garage and also did repair work on several houses which Kelso owned and rented to tenants. Scott Kelso-, trading as Kelso G-arage, was insured under the Workmen’s Cc.mjiensa.tion 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 Com mission, 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. Cod’

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 cover1 the employment of Kiee and other employees at the garage.”

The accident out of which this case grew happened on December 22nd, 1922, while Kiee 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 j udgment 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 22nd, 1923.

“Mr. Louis K. Kiee (Claimant),

“LaYale, Long-, Allegany Co., Md.

“Scott Kelso, trading as Kelso Garage (Employer),

“S. Liberty St., Cumberland, Md.

“Travelers Insurance Go. (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 ease has been re quested by some of the parties interested, on tbe following grounds:

“(1) To determine if tbe condition suffered by tbis party, and disability, was caused by an accident arising out of and in course of bis employment.

“Tbis bearing will be conducted by tbe Commissioner under tbe authority of tbe Commission, on Tuesday, April 3rd, 1923, at 9.15 A. 1L, at City Hall, Cumberland, Md.

“Please accept tbis notice to be present if you so desire, and notify tbe Commission if you bave any witness whom you desire to bave summoned; also sign, detacb and mail to tbis Commission tbe attached form of acknowledgment.

“State Industrial Accident Commission.

“A. E. Brown, Secretary.”

The award of the commission was as follows:

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

“That Louis It. Bice was injured on tbe 7th day of December, 1922, while in tbe employ of Scott Kelso, trading as Kelso Garage; that bis injuries consisted of injury to left arm and leg; that bis average weekly wage was $28.00; that said injury arose out of and in tbe course oí bis employment, and that be was temporarily totally incapacitated as a result of said injury.

“It is, therefore, tbis 24th day of April, 1923, by tbe State Industrial. Accident Commission, ordered that Scott Kelso, .trading as Kelso Garage, employer, and Travelers’ Insurance Company, insurer, pay unto Louis B. Bice compensation at tbe rate of $18 per week, payable weekly, during tbe continuance of bis disa bility, 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 tlie 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. Bar num, 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 re>-sulted from a íúsfc 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 68 of article 101 of the Oode by the Act of 1916, oh. 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 whether1 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.