After a careful examination of the record in this case, I find myself unable to concur in the opinion filed by a majority of the court.
Henry John Linck, while employed as a meat cutter by Henry Heil at the North Avenue Market, died from chronic valvular heart disease. His widow filed a claim for compensation with the State Industrial Accident Commission on the theory that his death resulted from an accidental injury arising out of and in the course of his employment.
The claim was disallowed by the commission, whereupon the claimant appealed to the Court of Common Pleas of Baltimore City. At the conclusion of the trial on that appeal there was a verdict in favor of the plaintiff, reversing the ruling of the commission, and in due course a judgment on the verdict was made absolute in favor of the plaintiff for costs. At the close of the testimony in the case the defendants submitted two prayers, one going to the merits, which was granted, and the following prayer, which was refused:
"The court instructs the jury that there is no evidence in this case legally sufficient to show that the disease from which Henry John Linck died was the result of an accidental personal injury, sustained by him on August 16th, 1935, arising out of and in the course of his employment, and the answer of the jury to the claimant's issue filed in this case must be `no,' thereby affirming the decision of the State Industrial Accident Commission. (Defendants' Exception No. 14.)"
By the majority opinion the judgment of the trial court was reversed on the theory that the prayer quoted above *Page 648 was a demurrer to the evidence, and in the opinion it was decided that the evidence submitted on behalf of the claimant was legally insufficient to support a verdict in her favor. Passing for the moment the sufficiency of the prayer to raise that question, I am not able to agree with that valuation of the evidence.
It is axiomatic that, in dealing with a demurrer to evidence, the truth of the evidence is assumed, together with all inferences which may naturally and legitimately be deducted therefrom. There was in the case evidence tending to prove these facts:
Linck at the time of his death was about fifty-six years old. He was about five feet three inches in height and weighed about 118 pounds. He was suffering at the time, and had been suffering for something over a year, from heart disease. He was employed as a meat cutter. Heil had several establishments. One at the North Avenue Market, one on Falls Road, and another on Saint Paul Street, and another apparently on the York Road. Linck was ordinarily employed at the Falls Road plant, but occasionally was sent to other plants or stores. Refrigerating rooms called ice boxes were connected with these several establishments. These rooms or boxes varied in size. Meats were kept in them and the duties of a meat cutter such as Linck was to cut up and trim the carcasses or joints kept in these rooms for the use of the wholesale and retail trade. Occasionally, in the larger rooms, the cutting would be done in the room itself. In the smaller rooms the meat would be carried from the refrigerating room and placed on a bench in the store. The temperature of the refrigerating rooms ran from thirty-two to thirty-four or five degrees. To one entering such a room the temperature seemed lower in the summer than in the winter. On August 16th, 1935, the meat cutter regularly employed at the North Avenue Market was off duty and Linck was sent to take his place. It happened that that day was unusually warm. One witness testified that it was "a pretty hot day on the outside that day; it was a pretty hot day, witness guessed it was a hundred; *Page 649 but he did not know what the temperature actually was." There was other testimony that the monthly meteorological summary of the United States Department of Weather Bureau showed that on that day the highest temperature was eighty-nine and that the humidity at eight p.m. was seventy-four. It does not appear where that record was made, not even whether it was made in Baltimore.
At the Falls Road store six men were employed, of whom Linck was one. A witness employed there, in describing the duties of the employees, said of men working in the store that, when they needed extra beef, extra pieces, they went down and got them, but that the men working inside the store do not work in the plant; that the box in the store is about eight feet long and about five feet wide, stored with meat; that there were no blocks inside such an ice box; and that the meat kept in them was cut up in the store.
John H. Blucher, an employee of Heil, testified that "now and then when we would cut extra pieces he would cut it downstairs in the box. Q. Downstairs? A. In the store. Q. I don't understand what you mean by downstairs. A. The plant is on the first floor. Q. On the Falls Road? A. Yes, sir. Q. Where would they cut the meat that you need in the store? A. Right up in the store in front of the ice box on the blocks. Q. In front of the ice box? A. Yes, sir."
The same witness further said: "Q. Did you permit Mr. Linck to do any heavy lifting? A. No, haven't this past year, most of the heavy lifting we had somebody else do. Q. Why? A. Henry had complained this year of a very bad heart, and three days before he died he complained of severe pain through here (indicating upper chest)."
The same witness, recalled for the defendant, testified that Linck did some work in one of the boxes in the packing plant, but that he was employed as a meat cutter in the store, and that he cut meat in the cooling room on the first floor about once a week, that he "did that work for pretty nearly three years, anyhow at least that *Page 650 long." Mr. Heil, the employer, testified that Linck worked in the "cool room" every Friday and as often during the week as they needed cuts of veal or lamb, and, when asked whether Linck had occasion to carry any beef or other meats when working in the cool room, he answered, "Why, no, the only thing Mr. Linck would do in the cool room would be in the way of trimming down a side and cutting a hind quarter, and cutting the loin from the round, or maybe taking a rib out of a fore-quarter or a chuck off a fore-quarter or something like that, but to go down and bone it and fix it in the box, we didn't have the blocks on the inside of the box for that. We didn't have the room to do that in there." He further said that Linck did have to lift quarters of beef and carry them out of the ice box onto the block. Blucher testified that in the Falls Road plant there was no cutting block inside the refrigerator room because the veal and lamb were cut while hanging on the hooks and that the beef was cut also while hanging on the hooks. It appeared, however, that at the North Avenue Market plant quarters of beef were lifted off the hook, put on the cutting block, and cut into smaller parts in the cooling room.
It further appeared that the quarters of beef hung within two feet of the floor and that they weighed from 130 to 160 pounds. Prior to some time in July, 1935, there was no occasion for any meat cutter to go into the cooling room of the North Avenue Market to cut meat, because they had not taken on beef at that market until then, and it does not appear that Linck ever cut meat in that cooling room before August 16th, 1935, the day on which he died.
It further appears that, just preceding his death, Linck was in the cooling room, that, aided by another employee, he lifted two quarters of beef weighing 130 and 160 pounds from their hooks, and that he remained in the room on that occasion about thirty minutes, possibly longer, that while in there he was breathing heavily, seemed to be very cold and shortly after he came out he collapsed and died from heart disease. *Page 651
Dr. Samuel D. Wolf, a physician, testified that in his opinion death resulted from the combination of two factors, excessive physical exertion from lifting the heavy pieces of beef, and exposure in the freezing temperature for a half hour.
Upon those facts I find it impossible to distinguish this case from that of State Roads Commission v. Reynolds, 164 Md. 539,165 A. 475. In that case the employee was seventy-four years old, and, while not in bad health, his strength naturally was not that of a younger man, in this case the employee was fifty-six years old and was known to be suffering from heart disease; in that case Reynolds was ordinarily employed at light physical labor which one of his age in good health might readily do without danger, in this case, Linck, for about a year before his death, was, because of his physical condition, employed in work less arduous than that assigned to him before his heart condition was known, and he was given no work which involved heavy lifting; in the Reynolds case the employee ordinarily did work of a light and desultory character, such as cutting roadside grass, clearing away litter and trash, cleaning drains and the like, in this case Linck was ordinarily employed at a plant where ordinarily he cut the meat in the store and not in the cooling room, but once a week he did some work in that room which did not apparently involve lifting heavy weights; in that case Reynolds was called from his ordinary work on an extremely hot day and ordered to assist in loading heavy cobble stones into a truck, in this case Linck was called from his ordinary work as a meat cutter in a retail store on an extremely hot day and ordered to cut meat in a cooling room with a temperature of thirty-two degrees, where he remained for thirty minutes, and in the course of that work he was required to lift, with the aid of another employee, pieces of beef weighing from 130 to 160 pounds, in such a way that for a time the greater part was on him, as he had the lower end of the piece, lifting it "up off the hook"; in the Reynolds case the unusual effort under the conditions imposed a strain *Page 652 which, because of his age, he was unable to bear, and as a result of which he died, in this case the unusual strain under the conditions imposed a strain on Linck which, because of the condition of his heart, he was unable to bear, and as a result of which he died; in neither case did either the employer or the employee anticipate the danger inherent in the work under the circumstances to the employee. Upon those facts, it is no more open to doubt that Linck's death was caused by his employment than that Reynolds' death was caused by his employment, and the inference, to say the least of it, is permissible, that the employment caused the injury, and that it arose out of the employment.
The inference that it was accidental in its nature is also as reasonable in this as in the Reynolds case. Four factors, it may be inferred, contributed to Linck's death: (1) the unusual and severe heat of the day; (2) the shock and depressing effect of passing from that atmosphere into a room at a freezing temperature and remaining there for thirty minutes; (3) excessive physical exertion in that room at that temperature; and (4) his disease. The first three may not have affected a person in normal health, but because of Linck's heart condition their effect on him was fatal. He did not realize the danger, he said before he went in the room he "felt fine," his employer realized the danger of heavy lifting to one in Linck's condition, for Blucher gave this testimony: "Q. Did you permit Mr. Linck to do any heavy lifting? A. We haven't this past year, most of the heavy lifting we had somebody else do," but no danger was anticipated on that occasion, in fact it may well have been thought that Watts, who worked with him, would do the heavier lifting, whereas for a couple of seconds the greater part of the weight of a 160-pound quarter of beef was borne by that frail little man, weighing but 118 pounds and suffering from chronic valvular heart disease, who was "lifting it up off the hook."
Necessarily, the meaning of "accidental" as used in the Workmen's Compensation statute, is not inflexible, but *Page 653 varies to some extent with the circumstances to which it is applied; nevertheless it always connotes surprise, an occurrence that is not foreseen, designed, or expected. 71 C.J. 563.
In Schemmel v. T.B. Gatch Sons Contracting Bldg. Co.,164 Md. 681, 166 A. 39, 43, this court said: "The word `accident' or `accidental' is usually considered in connection with the phrase `arising out of,' and, where it seems clear that the injury arose `out of the employment,' the tendency of the courts has been to give the word `accidental' a liberal construction in harmony with the general intent of the act, so as to find the injury compensable. As a result of that policy, such an injury as cerebral hemorrhage, when occasioned by some unusual and extraordinary condition in the employment, is by the great weight of authority held to be accidental in its nature," and that interpretation of the word was illustrated by a variety of cases collected in the opinion in that case. Those cases followedStandard Gas Equip. Corp. v. Baldwin, 152 Md. 321, 329,136 A. 644, 647, where the court, after a full consideration of the question, deliberately decided that for an injury to be accidental "there need be no exterior force if the progress of the disease (not occupational) is hastened by some unusual strain or condition in the course of work." That conclusion is not only consistent with the weight of authority (71 C.J. 563 et seq.), but is consistent also with the purpose and meaning of the whole scheme of workmen's compensation. That is not, indeed, a plan of industrial insurance, but a plan to divide primarily between capital and labor the losses arising from injuries to workmen incident to the hazards of industry, with a view of imposing those losses upon the whole business as an expense of operation. It involved concessions both by capital and labor, and under it each sacrificed some possible contingent benefits and advantages for certainty and security. To accomplish its beneficent purpose, it was essential that it be interpreted and administered liberally to effect its intent; every consideration, social, economic, *Page 654 and humane, favored that policy, and it was clearly adopted as the policy of this court. The conclusion reached in this case appears to me to reverse it, and to favor in lieu thereof a narrower, technical, formalistic policy, in conflict with the plain, sound, and healthful policy of the statute.
Apart from that consideration, the question was not even raised in this case. The so called demurrer to the evidence has no possible reference to the claimant's right to compensation. The only question which it raised was whether there was evidence legally sufficient to show that the "disease" from which Linck died was the result of an accidental injury, etc. It was conceded that Linck died from heart disease, nobody contended that an accidental injury caused that disease, but the question was whether, he having that disease, its course was accelerated and his death caused by an accidental injury.
Article 5, § 10, Code, precludes this court from considering any question not tried and decided by the trial court. The point upon which this case is decided was not presented to the trial court, could not therefore have been tried by it, and is not before this court for review. Article 5, § 10, Code, and annotations of Bagby and Flack. Since the trial court correctly, in my opinion, refused that prayer, the judgment should have been affirmed.
URNER and MITCHELL, JJ. also dissent.