adopt the rate of 4 per cent in discounting the payments to be anticipated in this case. Our opinion is that 5 per cent is a more appropriate rate, and is fully warranted by the evidence. That is the legal rate of interest-the rate we are constrained to allow when none is stipulated and interest is due. It seems quite equitable that the discount charged to the beneficiaries in computing the present value of deferred payments should be at the rate at which interest would be allowed to the plaintiffs on a past due claim of similar character.

We have concluded, therefore, to reduce the amount of the judgment in this case to the present value of 11.7 annual payments of $1,500 each, that is, the net proceeds, or what would be the present or cash value, of $17,550, payable in 11.7 yearly installments, discounted at 5 per cent. The result of our calculation is that the plaintiffs are entitled to a judgment for $13,547.64, viz..

[6] The jury was not required by the federal Employers' Liability Act to apportion the award of damages among the beneficiaries of the deceased employee. Central Vermont Railway Co. v. White, 238 U. S. 507, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas., 1916B, 252; Chesapeake & Ohio Railway Co., v. Kelly, 241 U. S. 485, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367.

The judgment appealed from is amended by reducing the amount to $13,547.64, and, as amended, it is affirmed; the appellant to pay the cost of the district court; the appellees the cost of appeal.

COURT OF APPEALS OF MARYLAND.

JEWEL TEA CO.

V.

WEBER. (No. 104.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW-REVIEW.

By the direct provisions of the Workmen's Compensation Act (Acts 1914, c. 800), the decision of a state industrial accident commission_shall be treated as prima facie correct on appeal, and the burden of proof shall be upon the attacking party; hence the burden of proving that the decision of the commission, as to whether the injury was received by the servant within the scope of his employment, was incorrect rests upon appellant.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].) 2. MASTER AND SERVANT WORKMEN'S COMPENSATION

ACT-REVIEW-QUESTIONS OF FACT.

On trial by jury after appeal from a decision of the Industrial Accident Commission under the Workmen's Compensation Act, it was for the jury to determine the questions of fact presented by the appeal, the court on such review not being authorized to interfere.

(For other cases, see Master and Servant, Dec. Dig § 417 [5].)

3. MASTER AND SERVANT - WORKMEN'S COMPENSATION

ACT-REVIEW-INSTRUCTIONS.

On trial by jury after appeal from a decision of the State Industrial Accident Commission, under the Workmen's Compensation Act, prayers for instructions should instruct the jury, in regard to the law applicable to certain facts to be found by them, and an instruction as to the burden of proof should be confined to the issues of fact; (For other cases, see Master and Servant, Dec. Dig. § 417[5].)

Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr., Judge.

Proceedings by Mary M. Weber under the workmen's compensation law for the death of Frank J. Weber, opposed by the Jewel Tea Company, employer. An award of compensation was affirmed after trial to a jury on appeal to the circuit court, and employer appeals. Affirmed.

Argued before Boyd, C. J., and Briscoe, Burke, Thomas, Urner, Stockbridge, and Constable, JJ.

Edward M. Hammond, of Baltimore, for appellant.

James Clark, of Ellicott City (William Colton and Philip Sachs, both of Baltimore, on the brief), for appellee.

THOMAS. J. Frank J. Weber, in March, 1961, was employed by the Jewel Tea Company, a corporation, as driver and salesman. As such driver and salesman he had charge of a "team of * Decision rendered, Jan. 16, 1918. 103 Atl. Rep. 476.

mules and a wagon,' and his duties were to drive through the country, along a designated route, and to take orders for and deliver goods and merchandise for the company. On the 11th of March, 1916, Weber and Harry F. Ferguson, another driver and salesman of the company, were together, and at the end of the day's work they drove the wagon to a stable in Savage, Md. According to the testimony of Ferguson, after the hostler put the mules in the stable and hung the harness up, he (Ferguson) went into the stable and saw Weber in another part of the stable "doubled over," and when he asked him how it had happened, Weber told him that the hostler had thrown the harness on the hook, and that when he went in the stable to fix it one of the mules kicked him. Weber was taken home that evening and placed under the care of a physician, to whom he stated that the mule had kicked him in the stomach. About two weeks later he was taken to a hospital and operated on for appendicitis, and died on. April 12th from "general peritonitis following an acute attack of appendicitis" which, according to the testimony of the doctor who attended and operated on him, was caused by the kick he received. Mary M. Weber, the widow of the deceased, filed a claim for compensation under the provisions of the workmen's compensation law. The claim was resisted by the company, and a great deal of testimony was produced by it before the State Industrial Accident Commission for the purpose of showing (1) that the attack of appendicitis of which Weber died was not caused by the kick; and (2) that at the time he was injured he was not acting within the scope of his employment by the company. The commission, however, found that Weber was injured while in the employ, of the company, "that as a result of said injury he died on the 12th of April, 1916, and that said injury arose out of and in the course of his employment," and awarded his widow compensation to the amount of $7.50 per week for the period of 7 years and 472 weeks. From the order of the commission the company appealed to the circuit court for Howard county. The case was tried in that court by a jury, on the evidence produced before the commission. After the evidence was read to the jury, the company (the appellant in the court below) offered four prayers, and the claimant (the appellee in the court below) offered one prayer. The appellant's first and second prayers sought to withdraw the case from the jury on the ground that the appellee had offered no evidence legally sufficient to entitle her to recover, and on the further ground that there was no evidence in the case, legally sufficient to show that the injury received by Weber "was received by him while he was acting within the scope of his employment." By the appellant's third prayer the court was asked to instruct the jury that the burden of proof was on the appellee to show "that when Weber was injured he was acting within the scope of his employment," and its fourth prayer instructed the jury that, unless

they found "that the appendicitis from which Weber died was the result of the mule kick complained of in the evidence," their verdict should be for the appellant. The court below rejected the appellant's first, second, and third prayers, and granted its fourth prayer, and also granted the prayer of the appellee, which instructed the jury that the burden was on the appellant to prove that the decision of the State Industrial Accident Commission was incorrect. The only exception in the case is to the granting of the appellee's prayer and the rejection of the appellant's first, second, and third prayers. The verdict of the jury was in favor of the appellee, and this appeal is from the judgment of the court below confirming the order of the commission.

While counsel in this case have, with commendable industry, filed in this court very full and carefully prepared briefs, the questions presented by the record are very narrow, and are, we think, fully covered by the decisions of this court.

[1] In reference to the company's third prayer, and the burden of proof in the trial of the case in the court below, whatever may be the rule elsewhere, under statutes providing compensation for injured employees, and their dependents, the workmen's compensation law of this state expressly declares that on appeal from the decision of the State Industrial Accident Commission the decision of the commission shall be treated as prima facie correct, and that the "burden of proof shall be upon the party attacking the same." In the case of Frazier v. Leas, 127 Md. 572, 96 Atl. 764, Judge Burke said:

"The Legislature has made the decision of the commission prima facie correct, but has provided that it may be attacked upon the grounds stated in the act, and where the proof is insufficient [sufficient] to establish the incorrectness of the decision, it may 'be reversed or modified.' Upon any issue of fact involved the appellant is given the valuable right of trial by jury, and a full opportunity to be heard."

In the case of American Ice Co. v. Fitzhugh, 128 Md. 382, 97 Atl. 999, Ann. Cas. 1915D, 33, where we held that the right to open and close followed the burden of proof, and that on appeal from a decision of the commission the appellant had a right to "open and close the evidence and arguments," the court said:

"By the express terms of the statute the burden is placed upon the appellant to show error in the decision of the commission which must be taken on appeal as prima facie correct."

In the case at bar one of the questions of fact to be determined on appeal was whether the injury sustained by the deceased arose "out of and in the course of his employment" by the company, and, as the commission had decided that question in the affirmative, under the provision of the act and the decisions of this court the burden was on the appellant to show that the decision was wrong, and that such injury did not arise out of and in the course of such employment.

[2] As the case was tried by a jury, with the burden on the appellant to show that the decision of the commission was incorrect, it was for the jury to determine the questions of fact presented by the appeal, and, among them the question whether the injury sustained by the deceased arose out of and in the course of his employment by the appellant, and the court was not authorized to say that the appellant had met the burden imposed on it, or to assume a fact to be found by the jury. In the case of Western Md. R. Co. v. Kehoe, 86 Md. 54, 37 Atl. 801, the court said:

"The court cannot decide between opposing witnesses. The jury must determine questions of fact, and as said in Charleston Insurance Co. v. Corner, 2 Gill, 427, 'no action of the court should control the exercise of their admitted right to weigh the credibility of evidence.""

In B. & O. R. Co. v. Hendricks, 104 Md. 76, 64 Atl. 304, Chief Judge McSherry said:

"There is no principle better established than that which denies to the court the right of assuming any fact, in aid of a prayer, when the onus of proving such fact rests upon the party asking the instruction, no matter how strong and convincing his proof on the subject may be."

In the case of Calvert Bank v. Katz, 102 Md. 56, 61 Atl. 411, Judge Jones, speaking for the court, said:

"Doubtless, the jury would have found these facts according to the testimony, but the sufficiency of evidence to satisfy a jury, or the circumstance that it was all on one side, does authorize the court to direct the jury that it proves the fact."

-and in the case of Lemp Brewing Co. v. Mantz, 120 Md. 176, 87 Atl. 814, the court said:

"With that burden on the plaintiff, the claimant, the case at bar could not, at the instance of the plaintiff, have been withdrawn from the jury, for although the evidence adduced by the plaintiff was practically uncontradicted, the rule in this state is that the court cannot assume the existence of facts and take away from the jury the finding of the same."

The settled rule in such cases as to the burden of proof, and the established principle applicable to withdrawing a case from the jury, required the jury to decide the questions of fact presented by the appeal in this case, and the court below properly refused to grant the first and second, and third prayers of the appellant.

As the principle referred to applies even where the evidence adduced by the party upon whom the burden of proof rests is practically uncontradicted, it is not necessary to consider the effect of the testimony of Mrs. Weber that the deceased, who had been employed by the appellant from October, 1915, as driver and salesman had charge of the wagon, and that his duties required him to look after the mules.