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Jewel Tea Co. v. Blamble

Decided: November 15, 1961.

JEWEL TEA CO., INC.
v.
BLAMBLE



Appeal from the Circuit Court for Allegany County; Morgan, C. J.

Henderson, Hammond, Horney, Marbury and Sybert, JJ. Sybert, J., delivered the opinion of the Court.

Sybert

This appeal raises the question whether, in a Workmen's Compensation case, the trial court properly permitted the jury to determine, on the basis of subjective lay testimony, that the employee was 100 per cent disabled when all the expert medical testimony in the case was to the contrary. From a judgment entered on the jury's verdict of 100 per cent disability, the employer appeals.

The facts are undisputed. Appellee, Josephine Blamble, was employed as a door to door saleslady by the appellant, Jewel Tea Company, Inc. While making a call in the village of Eckhart Mines on August 7, 1959, she fell down three steps of a residence and suffered a broken left ankle and a sprained right ankle. She was taken immediately to a hospital in Cumberland where her left ankle was set and a cast applied. After four days of complete bed rest she was taken to the physical therapy department for instruction in crutch ambulation and while being fitted for crutches she suffered a heart attack. She remained in the hospital two months before being sent home for an additional period of convalescence.

At a hearing before the Workmen's Compensation Commission to determine the extent of Mrs. Blamble's disability

the only medical testimony was given by the claimant's attending physician, Dr. George O. Himmelwright, a general practitioner, who stated that in his opinion Mrs. Blamble had suffered a myocardial infarction as a result of the crutchtraining episode, and that "she is disabled a hundred percent". When asked whether he felt she could engage in any kind of employment, his answer was: "Limited sir. I feel if she could sit down at something maybe three or four hours a day, yes, maybe with a rest period in between." The Commission determined that Mrs. Blamble had sustained an accidental injury arising out of and in the course of her employment and as a result was temporarily totally disabled from August 7, 1959 to October 1, 1959, inclusive. It further found that she had become permanently totally disabled, 60 per cent being reasonably attributable to the accidental injury and 40 per cent being attributable to a pre-existing condition.

Both parties appealed from this determination to the Circuit Court for Allegany County, where the case was tried before a jury. Dr. Himmelwright's testimony before the Commission was read into evidence. He also appeared as a witness, as did Dr. Samuel M. Jacobson, a cardiologist, both called by the appellant. At the close of the case the employer offered a prayer requesting the court to instruct the jury that from the uncontradicted evidence it could not find that Mrs. Blamble was 100 per cent disabled, which was denied and the denial excepted to. The jury returned a finding on issues that Mrs. Blamble was permanently totally disabled, 100 per cent of which was due to the accident and none due to a pre-existing disease, and the decision of the Commission was so modified. In its appeal from the resulting judgment the employer cites as error the refusal of the trial court to instruct the jury as requested in its prayer.

The leading Maryland case establishing the test of what constitutes "total disability" within ยง 36 of Art. 101, Code (1959 Cum. Supp.) is Congoleum Nairn v. Brown, 158 Md. 285, 148 Atl. 220 (1930). There this Court held that total disability means incapacity to do work of any kind, and not mere incapacity to perform that work which the employee was accustomed and qualified to perform before the injury.

(Compare views of other states in 16 Univ. of Detroit Law Jour., pp. 52-53 [1952].) In view of this definition, the question to be determined is whether there was sufficient evidence that Mrs. Blamble was unable to perform work of any kind, to justify submission of the issue of total disability to the jury.

The general rule in Workmen's Compensation cases is that where there is any evidence from which a rational conclusion may be drawn, as opposed to the theory of a prayer for a directed verdict, the trial court must leave to the jury all considerations as to the weight and value of such evidence. Superior Builders, Inc. v. Brown, 208 Md. 539, 119 A.2d 376 (1956); Martin G. Imbach, Inc. v. Tate, 203 Md. 348, 100 A.2d 808 (1953). Where this Court has before it a claim for permanent disability, the determinative question as to whether there was sufficient evidence of permanency to justify the trial court's submission of this issue to the jury is not whether this Court would have reached the same conclusion on the evidence as the jury arrived at, but whether there was legally sufficient evidence, if believed, to enable the jury to make the findings it did make. Baughman Co. v. Mellott, 216 Md. 278, 139 A.2d 852 (1958). The rule that mere possibilities, conjecture or speculation cannot form the basis of a jury verdict, in a personal injury case, Ager v. Baltimore Transit Co., 213 Md. 414, 132 A.2d 469 (1957), has also been cited in reference to workmen's compensation cases. Baughman Co. v. Mellott, supra.

The evidence produced on behalf of Mrs. Blamble's claim does not, in our opinion, meet the test of legal sufficiency under the authorities cited. Rather, the evidence as a whole leads to the conclusion that Mrs. Blamble was not in fact ...


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