Clough & Molloy v. Shilling

• Decision Date: 04 December 1925
• Docket Number: 13.
• Parties: CLOUGH & MOLLOY v. SHILLING ET AL.
• Court: Maryland Court of Appeals

131 A. 343

149 Md. 189

CLOUGH & MOLLOY v. SHILLING ET AL.

No. 13.

Court of Appeals of Maryland

December 4, 1925

Appeal from Superior Court of Baltimore City; Eli Frank, Judge.

Action by Effie Shilling, individually, and others, to the use of the Indemnity Insurance Company of North America, against Clough & Molloy. Judgment for plaintiffs, and defendants appeal. Affirmed.

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

Walter L. Clark, of Baltimore, for appellants.

Robert R. Carman, of Baltimore (Franklin P. Barrett, G. C. A Anderson, and Keech, Deming & Carman, all of Baltimore, on the brief), for appellees.

DIGGES J.

During the month of March, 1923, there was being constructed a building in Baltimore City known as the Johns Hopkins University Dormitory; the general contractor in charge of the work being Frainie Bros. & Haigley. There were a number of subcontractors employed to do certain portions of the work going into the general construction, among whom were the Pen-Mar Company, the employer of John Edgar Shilling, who subcontracted for the slate roofing; and Clough & Molloy, the defendants below and appellants here, who were the subcontractors doing the stone work. On the 28th day of March, 1923, John Edgar Shilling, while in the course of his employment on and around the building, was struck upon the head and killed by a falling piece of scantling 4 by 4 and 10 or 12 feet long. Shilling was the foreman in charge of the work being done by the Pen-Mar Company, and at the time of his death left surviving him a widow, Effie Shilling, and four minor children. The Pen-Mar Company, the employer of Shilling, was protected by a policy of liability insurance in the Indemnity Insurance Company of North America. Shortly after the death of her husband, Effie Shilling made application to the State Industrial Accident Commission for compensation for the death of her husband, on behalf of herself and minor children under and in accordance with the provisions of article 101 of Bagby's Annotated Code of 1924, which article is commonly known as the Workmen's Compensation Act. On or about May 4, 1923, the State Industrial Accident Commission awarded compensation against the Pen-Mar Company, the employer of the deceased, and the Indemnity Insurance Company of North America, the insurer, in the sum of $5,000 and $125 for funeral expenses incurred by reason of the death of Shilling, and apportioned the award among the widow and Ruth E. Shilling, Dorothy M. Shilling, John Walter Shilling, and Edith May Shilling, minor children of the deceased. This compensation was being paid by the insurance company. After the lapse of two months, no action having been brought by the insurance company against Clough & Molloy, the appellants, the alleged tort-feasors, suit was instituted in the superior court of Baltimore City by Mrs. Effie Shilling, widow of John Edgar Shilling, deceased, individually and as next friend of Ruth E. Shilling, Dorothy M. Shilling, John Walter Shilling, and Edith May Shilling, infants, in their behalf, and to the use of the Indemnity Insurance Company of North America, a body corporate, against Clough & Molloy, Incorporated. This case was heard by the court and jury, and on February 16, 1925, resulted in a verdict for the plaintiffs for the sum of $15,000 apportioned as follows: To the Indemnity Insurance Company of North America, $5,125; to Effie Shilling, widow, $5,000; to Ruth E. Shilling, infant, $500; to Dorothy M. Shilling, infant, $875; to John Walter Shilling, infant, $1,500; and to Edith May Shilling, infant $2,000--on which day a judgment nisi on verdict was entered. On February 17, 1925, defendant filed a motion for a new trial and also a motion in arrest of judgment, both of which motions were on February 21st overruled, and the judgment on verdict made absolute in favor of the plaintiffs for $15,000 apportioned as above stated. From this judgment the appellants have brought this appeal.

The record contains four exceptions, the first and second being to the ruling of the court in sustaining an objection by the plaintiff to the offer by the defendant of the report of the employer to the State Industrial Accident Commission; the third being to the ruling of the court on the prayers; and the fourth to the overruling of the defendant's motion in arrest of judgment. The first two exceptions were not pressed at the argument or in the brief of the appellant, and are practically abandoned, which makes it unnecessary for us to discuss them, further than to say that we have examined them and find no reversible error. The record presents, therefore, for our consideration two questions; the one raised by the motion in arrest of judgment being whether the plaintiffs have any right to maintain the action in its present form, and the second raised by the prayers of the defendant seeking to withdraw the case from the jury for want of sufficient evidence. Taking these up in the order named, as to the first it is contended that section 58 of article 101 of the Code, entitled "Workmen's Compensation," does not create any new cause of action; that at common law in cases of negligence resulting in death no right of action survived to the dependents of the deceased, but that such action for personal injury ceased with the death of the injured party; that at the present time, under the laws now in force in this state, the only right of action given in such a case is by the provisions of Lord Campbell's Act, codified as article 67, and that this suit was improperly brought if attempted under the authority of Lord Campbell's Act, for the reason that that article specifically provides, by section 2, that the action must be brought in the name of the state of Maryland for the use of the persons designated in the article. We do not think that this contention is sound. Article 101, "Workmen's Compensation," originally enacted by chapter 800 of the Acts of the General Assembly of Maryland 1914, in its preamble states:

"The state of Maryland, exercising herein its police and sovereign power, declares that all phases of extrahazardous employments be, and they are hereby withdrawn from private controversy, and sure and certain relief for workmen injured in extrahazardous employments and their families and dependents are hereby provided for, regardless of questions of fault and to the exclusion of every other remedy, except as provided in this act."

And by section 60 of the said act, now codified as section 63 of article 101, it is provided:

"The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this article; but this article shall be so interpreted and construed as to effectuate its general purpose." Bearing in mind the purpose of the Workmen's Compensation Law and the rule of construction to be applied thereto, we will now examine the provisions of article 101 by virtue of which the case now before us was instituted, and which are contained in section 58 of article 101, Bagby's Code 1924. This section provides:

"Where 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 employee, or in the case of death, his personal representatives 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, if he is self-insured, insurance company, association or the state accident fund, may enforce for their benefit, 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, and also any payments made for medical or surgical services, funeral expenses or for any of the other purposes enumerated in section 37 of this article, then any such excess shall be paid to the injured employee, or in case of death to his dependents less the expenses and costs of action, incurred by the employer, insurance company, association or state accident fund as the case may be. If any such employer, insurance company, association or state accident fund shall not, within two months from the passage of the award of this commission, start proceedings to enforce the liability of such other person, the injured employee, or in case of death, his dependents, may enforce the liability of such other person provided, however, that if damages are recovered the injured employee or in case of death his dependents may first retain therefrom the expenses and costs of action for which the employer, insurance company, association or the state accident fund, as the case may be, shall be reimbursed for the compensation already paid or awarded and any amount or amounts paid for medical or surgical services, funeral expenses or for any of the other purposes enumerated in section 37 of this article, and the balance in excess of these items shall inure to the injured employee, or in case of death, to his dependents, and the amount thus received by the injured employee or in case of death by his dependents shall be in lieu of any award that might otherwise have been made thereafter in the same case under the provisions of this article and said case shall thereupon be deemed to have been finally settled and closed."

It will be seen that where injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability in some person...