Baltimore Transit Co. v. State, to Use of Schriefer

• Decision Date: 16 November 1944
• Docket Number: 32.
• Citation: 39 A.2d 858,183 Md. 674
• Parties: BALTIMORE TRANSIT CO. v. STATE, to Use of SCHRIEFER et al.
• Court: Maryland Court of Appeals

39 A.2d 858

183 Md. 674

BALTIMORE TRANSIT CO. v. STATE, to Use of SCHRIEFER et al.

No. 32.

Court of Appeals of Maryland

November 16, 1944

Appeal from Baltimore City Court; Samuel K. Dennis, Chief Judge.

Action by the State of Maryland, to the use of Carrie Schriefer and others, against The Baltimore Transit Company, Katherine Bauernfeind, and another, for the death of use plaintiffs' husband and father, wherein unnamed defendant was never summoned, first-named defendant filed a general issue plea, and the second-named defendant after an order extending her time for pleading was rescinded, filed a general issue plea. The transit company obtained an order making the mayor and city council of Baltimore a third party defendant. After city's demurrer to the third party claim was overruled, city's motion to strike out the order was granted, and the Baltimore Transit Company appeals.

Order affirmed.

Philip S. Ball and Eben J. D. Cross, both of Baltimore (Joseph R. Hudson, of Baltimore, on the brief), for appellant.

Michael J. Manley and Helen Elizabeth Brown, both of Baltimore (Harley, Wheltle & Manley and Simon E. Sobeloff City Sol., all of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN BAILEY, CAPPER, and HENDERSON, JJ.

HENDERSON Judge.

The appeal in this case is from an order of the Baltimore City Court rescinding a previous order of the court that authorized the appellant to implead the Mayor and City Council of Baltimore as a third party defendant in a tort action brought under the provisions of Section 72, Art. 101 of the Code, against the Baltimore Transit Co. by Carrie Schriefer and her minor children on account of the death of her husband, Charles Schriefer. The decedent, an employee of the City, died of injuries sustained in the course of his employment, on account of which the City, as employer and self-insurer, is paying compensation to Schriefer's dependents under an award of the State Industrial Accident Commission.

The accident occurred on February 26, 1942, when Schriefer, a regular employee of the Street Cleaning Department, was riding upon a truck owned by Katherine Bauernfeind and operated by her chauffeur, George Bivens. Under contract with the owner, the trusk and its driver were engaged in collecting ashes for the City. The truck, coming South on Linden Avenue, made a left turn to enter Camel Alley across the northbound tracks of the Transit Company, when it was struck by a northbound street car. Schriefer was thrown to the street and suffered injuries from which he died on the same day. Claim for compensation was duly filed, and on March 10, 1942, the Commission ordered the City to pay compensation at the rate of $17.41 per week for a period of 287 2/7 weeks not to exceed $5,000, and funeral expenses not to exceed $125. On June 30, 1942, this action was commenced against The Baltimore Transit Co., Katherine Bauernfeind and George H. Bivens. The latter was never summoned. On August 1, 1942, the Transit Company filed a general issue plea. On August 3, 1942, the time for pleading by Katherine Bauernfeind was extended, pending decision of a controversy between her and her insurance carrier in the Federal Court, but this order was rescinded on February 20, 1943, and she filed a general issue plea on March 8, 1943. Meanwhile, on March 2, 1943, the Transit Company filed a motion and third-party claim, and obtained an order making the City a third-party defendant. On April 9, 1943, the City demurred to the third-party claim. On November 4, 1943, the demurrer was overruled. On December 30, 1943, the City filed a motion to strike out the order of March 2, 1943, and obtained a show cause order. This came on for hearing upon motion and answer, and on March 2, 1944, the motion was granted.

The third-party claim was based upon the allegations that the truck driver, Bivens, was acting as the agent and servant of the City at the time of the accident, and that the accident was caused solely by his negligence. Liability on the part of the City was claimed under the Joint Tortfeasors' Act, Art. 50, sections 21-30 of the Code (1943 Suppl.) as enacted by ch. 344 of the Acts of 1941. The motion to strike out the order of March 2, 1943, making the City a third-party defendant, did not deny the agency, but contended that the employer of the decedent was liable only under the provisions of the Workmen's Compensation Act and that the Joint Tortfeasors' Act was not applicable.

There is no doubt that the Workmen's Compensation Act substituted for the common law liability of an employer for negligence, subject to the corresponding common law defenses, an absolute, but limited, liability regardless of fault, and made that liability exclusive, in the case of a conforming employer. Section 14, Art. 101 of the Code.

In Kramer v. Globe Brewing Co., 175 Md. 461, 470, 2 A.2d 634, 638, this Court said:

'Under the provisions of the Act, therefore, the right to sue the employer at common law is only inherent in the employee in those cases in which the employer has failed to comply with it; in which latter case the employee, or his representative in cases of death, has the option of either claiming compensation under the Act, or maintaining an action at common law for damages on account of the injury. If suit is brought at common law against an employer who has complied with the provisions of the Act, he can, and ordinarily does, meet the action by filing a plea showing that he has so complied and is therefore subject to its provisions. Salvuca v. Ryan & Reilly Co., 129 Md. 235, 98 A. 675.'

Under the provisions of section 72 of Art. 101 of the Code, as it stood prior to 1920, Laws 1914, c.

800, § 57, the injured employee, or his dependents in case of death, had an option to proceed against his employer for compensation under the Act or against a negligent third party at law, but only against one or the other. Hagerstown v. Schreiner, 135 Md. 650, 109 A. 464.

Under the original act, however, the employer had a right to enforce the liability of a negligent third party for the benefit of himself or the insurer, any excess to be paid to the injured employee. By amendments, in 1920 and 1922, the further right was given to the employee, or his dependents, after receiving compensation, to sue the negligent third party at law, if the employer or insurer failed to do so within two months from the date of the award, with an obligation to reimburse the employer or insurer out of the proceeds. In either case, however, the measure of damages is the loss to the injured employee, or his dependents and not merely the amount of the award. Clough & Molloy v. Shilling, 149 Md. 189, 131 A. 343.

The claim of the employer or insurer is by way of subrogation. Western Maryland Railway Co. v. Assurance Co., 163 Md. 97, 161 A. 5.

And it has been held that the action is not barred by an agreement of the employer to indemnify the negligent third party. State v. New York, P. & N. R. Co., 141 Md. 305, 307, 118 A. 795.

Since the statute fixes the right to reimbursement, the employer or insurer is not a necessary party to a suit by the employee. Stark v. Gripp, 150 Md. 655, 133 A. 338.

It is contended, however, that the employer's immunity from suit by the employee was modified by the passage of the Joint Tortfeasors' Act in 1941, so as to permit the joinder of a conforming employer whose negligence caused or contributed to the happening of an accident, at the instance of the negligent third party. The case is one of first impression in this Court, although the same question was decided, adverse to the appellant's contention, in the Baltimore City Court (Frank, J.) in the case of Vermillion v. Lyon Conklin Co. Daily Record April 25, 1942. Brotman v. McNamara, 181 Md. 224, 29 A.2d 264, the only case in which this Court has construed the Joint Tortfeasors' Act, is not in point.

The primary purpose of the Joint Tortfeasors' Act was to create a right of contribution among joint tortfeasors, which did not exist at common law, Baltimore & O. R. R. Co. v. Howard County Commissioners, 113 Md. 404, 77 A. 930, and to establish a procedure whereby that right might be made effective in practice.

Section 22(a) of Art. 50 provides: 'the right of contribution exists among joint tortfeasors.' Section 21 provides: 'For the purposes of this sub-title--(a) 'Joint tortfeasors' means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them. (b) 'Injured person' means any person having a claim in tort for injury to person or property.' Section 27(a) provides:

'Before answering, a defendant seeking contribution in a tort...