Liggett & Meyers Tobacco Co. v. Goslin

• Decision Date: 03 June 1932
• Docket Number: 13.
• Citation: 160 A. 804,163 Md. 74
• Parties: LIGGETT & MEYERS TOBACCO CO. ET AL. v. GOSLIN.
• Court: Maryland Court of Appeals

160 A. 804

163 Md. 74

LIGGETT & MEYERS TOBACCO CO. ET AL. v. GOSLIN.

No. 13.

Court of Appeals of Maryland

June 3, 1932

Appeal from Circuit Court, Dorchester County; Joseph L. Bailey and Robert F. Duer, Judges.

Proceeding under the Workmen's Compensation Act by Carlton M Goslin, opposed by the Liggett & Meyers Tobacco Company employer, and the American Mutual Liability Insurance Company, insurer. A decision of the State Industrial Accident Commission disallowing employee's claim was reversed by the circuit court for Dorchester county, and the employer and the insurer appeal.

Judgment of the circuit court for Dorchester county reversed, and decision of the State Industrial Accident Commission affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

Roszel C. Thomsen, of Baltimore (Walter L. Clark, of Baltimore, and V. Calvin Trice, of Cambridge, on the brief), for appellants.

William D. Gould, 3d, of Cambridge, for appellee.

OFFUTT J.

Carlton M. Goslin, the appellee in this case, a resident of Dorchester county, Md., on August 26, 1927, while employed as a traveling salesman by Liggett & Meyers Tobacco Company of New York City, was severely injured as the result of an accident arising out of and in the course of that employment.

Liggett & Meyers Tobacco Company, one of the appellants, at the time of the accident had offices in New York, in Wilmington, Del., and in Baltimore, Md. Prior to the accident, its agents in Wilmington by a contract of employment made at that place engaged Goslin as a traveling salesman to work in the counties of Cecil and Kent in Maryland and the county of Newcastle in Delaware. In the course of his employment he made his headquarters at Elkton, Md., but transacted all business with his employer through the Wilmington office, except that he was paid by checks sent from appellants' New York office. The accident in which he was injured occurred at Glasgow, Del., and at that time his average weekly wage was $25.

On February 28, 1930, he filed with the State Industrial Accident Commission of Maryland, under Code, art. 101, against Liggett & Meyers Tobacco Company, his employer, a claim for a permanent partial disability. Thereupon, the employer and the American Mutual Liability Insurance Company, insurer, asked that the case be set for a hearing to determine the following issues:

"1. Whether the claimant at the time of his injury was covered by the Workmen's Compensation Law of the State of Maryland.

2. Whether the employer and insurer were prejudiced by the failure of the complainant to file his claim and physician's report within 30 days after the beginning of his disability as required by law.

3. Whether the claimant elected to make his claim against the employer and insurer under the laws of the State of Delaware.

4. Whether the claimant elected to make his claim against the employer and insurer under the laws of the State of New York."

The case was heard, and at the conclusion of the hearing the commission found for the employer on the first issue and disallowed the claim. That decision was reversed on appeal to the circuit court for Dorchester county, and from the judgment of that court reversing it, this appeal was taken.

In addition to what has been stated, it also appeared at the hearing before the commission that when Goslin was "first hurt" he "took the matter up with" his employer, and that for about two months they sent him his pay check as though he were still working for them, and that then a representative of the insurance company came to see him. Goslin talked to him about compensation, told him where he was hurt and where employed, and after that the insurance company "started paying" him compensation at the rate of $16.67 per week, and for a while paid all his expenses. During that period Goslin employed James A. McAllister, Esq., a member of the bar practicing at Cambridge, to represent him, and on November 10, 1928, McAllister addressed a letter to the insurer in reference to further compensation. As a result of that and other negotiations the insurer paid to Goslin $445 and took from him the following release:

"American Mutual Liability Insurance Company of Boston

File No. 27 WC 26818B-400.

New York, N. Y., Dec. 31, 1928.

Received from Liggett & Myers Co., employer, Four hundred forty-five (445) dollars and 00 cents being advance final payment made by said employer under the provisions of the Workmen's Compensation Law to C. M. Goslin, employee, for compensation on account of disability resulting from injury sustained by employee on 8-27-27 at Glasgow, Delaware.

Evelyn N. Jones. C. M. Goslin"

The payment was made by draft in the following form:

"To Central Union Trust Company

Forty-Second Street Branch,

New York, N. Y.

Through the New York Clearing House

Dec. 31, 1928.

Pay the Sum of Four Hundred forty five dollars only______Dollars

To the order of C. M. Goslin,

In payment of amount due under the Workmen's Compensation Act for period From Final to Both Dates inclusive

Lump Sum

Employer Liggett & Myers Co.

Policy No. 27-WC-26818B

Date of Injury 9--27--27.

Accident No. 400.

For American Mutual Liability Insurance Co.

Boston, Mass.

Account No. 2.

Wm. H. Steinenck E. M. Garby.

Counter Signature"

On the reverse side of check appears the following:

"Endorsement of this Draft is an acknowledgment that the amount indicated thereon equals the compensation due me for the period stated on the reverse side.

C. M. Goslin, Payee's Signature."

It also appeared that on November 22, 1928, the appellee filed a claim for compensation with the Bureau of Workmen's Compensation, Department of Labor, of the State of New York, and it may be inferred that the settlement which was made was made with reference to the New York proceeding as there was at that time no proceeding pending in Maryland, or so far as the record shows in any other state.

The case was tried in the circuit court for Dorchester county upon the theory that the appeal to that court presented but a single issue, to wit, "Was the accident to the claimant covered by the Workmen's Compensation Law of the State of Maryland?" and the order of the commission was reversed because of its finding on that issue. But the appeal allowed by the statute, Code, art. 101, § 56, as amended by acts 1927, c. 587, is not from the findings or opinion of the commission but from its "decision." And by "decision" is obviously meant the order by which it disposes of the case. If upon an appeal from its decision it should appear that it was right and proper it should be affirmed, even though it also appeared that the findings of the commission were erroneous. For example, in this case it may well have been that the order of the commission disallowing the claim was just and correct and within its powers because of the delay in filing the claim, Acts 1931, ch. 339, and in that event its order should have been affirmed even though its finding that the case was not covered by the Maryland Workmen's Compensation Act was erroneous.

But as the case was tried in the lower court upon the issue we have stated, and since neither that court nor the commission was asked to determine the other issues, it will be assumed that they are out of the case and that by the consent of both parties that it is to turn upon that question alone.

At the conclusion of the case in the circuit court for Dorchester county the employer and insurer offered five prayers, of which four were in one form or another demurrers to the evidence, and the fifth sought to accomplish a like result by directing a verdict upon the finding of facts which were conceded. The theory upon which all of these prayers rest is that since the contract was not made in this state, and that since the injury did not occur therein, that it is not compensable under the Maryland Workmen's Compensation Act. The appellee rests his claim upon Code, art. 101, § 32, and especially upon subsection 43. That section provides in part that: "Compensation provided for in this Article shall be payable for injuries sustained * * * by employees engaged in the following extra-hazardous employments. * * * All salesmen * * * employed to solicit orders from customers outside of the establishment for which they are employed, who are citizens or residents of this State, employed by a person, firm or corporation having a place of business within this State, whether the injury for which compensation is asked was sustained within this State or elsewhere. Provided, however, if an employee * * * shall have received compensation or damages under the laws of any other State, nothing herein contained shall be construed so as to permit a total compensation for the same injury greater than is provided for in this Article." The appellants, however, assert that if susceptible of the construction which the claimant places upon it that statute is discriminatory, in conflict with section 2, clause 1, article 4, of the Constitution of the United States, and section 1 of the Fourteenth Amendment thereof, and article 23 of the Declaration of Rights of Maryland, and therefore null and void, but that properly construed it applies to accidents happening outside of the state only when the contract of employment was made within the state, and that in either event it furnishes no support to the appellee's claim, because in his case the contract of employment was made without the state.

The relevancy of the due process clause of the Fourteenth Amendment of the Federal Constitution and article 23 of the Declaration of Rights of Maryland are not involved because of the construction given the act and need not be discussed. Appellants based their attack...