City of Hagerstown v. Schreiner

• Citation: 109 A. 464,135 Md. 650
• Decision Date: 16 January 1920
• Docket Number: 79.
• Parties: MAYOR AND COUNCIL OF HAGERSTOWN v. SCHREINER et al.
• Court: Court of Appeals of Maryland

109 A. 464

135 Md. 650

MAYOR AND COUNCIL OF HAGERSTOWN v. SCHREINER et al.

No. 79.

Court of Appeals of Maryland

January 16, 1920

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

Action by Florence Schreiner and others against the Mayor and Council of Hagerstown, a corporation. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and ADKINS, JJ.

Alex. R. Hagner, of Hagerstown, and F. Neal Parke, of Westminster (J. A. Mason, of Hagerstown, and Bond & Parke, of Westminster, on the brief), for appellants.

Frank G. Wagaman, of Hagerstown (E. O. Weant, of Westminster, and Omer T. Kaylor, of Hagerstown, on the brief), for appellees.

BURKE J.

The appeal in this case presents for determination the true construction of section 57 of the Acts of 1914, chapter 800 known as the Workmen's Compensation Act. That section is codified as section 58 of article 101 of the Code, and is as follows:

"Where the injury or death for which compensation is payable under this article was caused under circumstances creating a legal liability in some person, other than the employer, to pay damages in respect thereof, the employé or in case of death, his personal representative or dependents as hereinbefore defined, may proceed either by law against that other person to recover damages or against the employer for compensation under this article, or in case of joint tort-feasors against both; and if compensation is claimed and awarded or paid under this article any employer may enforce for the benefit of the insurance company or association carrying the risk or the state accident fund, or himself, as the case may be, the liability of such other person; provided, however, if damages are recovered in excess of the compensation already paid or awarded to be paid under this article, then any such excess shall be paid to the injured employé or, in case of death, to his dependents, less the employer's expenses and costs of action."

The question arose in this way: On the 24th of April, 1918, Clarence M. Schreiner, an employé of the Cumberland Valley Telephone Company, died as the result of an accidental injury arising out of and in the course of his employment by that company. He left surviving him a widow, Florence Schreiner, and two minor children. The widow and children were dependent upon him for support. On the 10th of August, 1918, Mrs. Schreiner, the widow, on behalf of herself and the children, filed a claim under the act with the State Industrial Accident Commission for compensation as dependents, and on the 21st of September, 1918, the commission "ordered that compensation at the rate of $8.08 per week,payable weekly, be paid to the said Florence Schreiner by Cumberland Valley Telephone Company, employer, and AEtna Life Insurance Company, insurer, for the period of eight years, from the 24th day of April, 1918, not to exceed, however, the aggregate amount as provided in section 35 of chapter 800, Acts of the General Assembly of Maryland of 1914, and such further sum not to exceed $75 as the said claimant may have paid or obligated herself to pay on account of the funeral expenses incurred by reason of the death of the said Clarence Schreiner, and that final settlement receipt be filed with the commission in due time, and it is also hereby ordered and directed that the said Florence Schreiner apply said compensation to the use of herself and her children in such proportion as under the circumstances may seem to her best."

Thereafter to wit, on December 31, 1918, the widow and children of the deceased brought suit against the mayor and city council of Hagerstown, a municipal corporation, to recover damages for the death of Clarence M. Schreiner upon the ground that the death of the husband and father was caused by the joint negligence of the defendant and the Cumberland Valley Telephone Company, his employer. The case was removed to the circuit court for Carroll county. The trial in that court resulted in a verdict and judgment for the plaintiffs, and this is the defendants' appeal from that judgment. The defendant pleaded the general issue and three special pleas in bar. The second and third pleas set out the application of Mrs. Schreiner to the state Industrial Accident Commission and the award of the commission, allowing compensation. The plaintiffs demurred to the special pleas, and the court sustained the demurrer. During the progress of the trial the defendant offered to show the application of Mrs. Schreiner to the state Industrial Accident Commission for compensation and the award of the...