Furley v. Warren-Ehret Co.

• Decision Date: 11 May 1950
• Docket Number: 168.
• Citation: 73 A.2d 497,195 Md. 339
• Parties: FURLEY v. WARREN-EHRET CO. et al.
• Court: Maryland Court of Appeals

73 A.2d 497

195 Md. 339

FURLEY v. WARREN-EHRET CO. et al.

No. 168.

Court of Appeals of Maryland.

May 11, 1950

Edwin S. Panetti, Baltimore, for appellants.

Jesse Slingluff, Jr., Baltimore (Michael P. Crocker and Marbury Miller & Evans, Baltimore, on the brief), for appellee.

Before MARBURY, C J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL JJ.

HENDERSON, Judge.

Harry Furley, an employee of the Warren-Ehret Company, received an injury to his eyes on April 25, 1945 in the course of his employment for which on December 6, 1946 he was awarded workmen's compensation for permanent total disability in an amount not to exceed $7,500. He died on April 24, 1948 from causes wholly unrelated to the accidental injury. At the time of his death there was an unpaid balance of about $3,000.

Tillie Furley, the widow and sole dependent of the decedent, filed a petition before the State Industrial Accident Commission to have the portion of the award accruing subsequent to his death paid to her. On January 13, 1949 the Commission made a finding that under the law then in effect 'the unpaid compensation at the date of death shall survive to and vest in the personal representatives of the deceased'. The only order passed however, was 'that Tillie Furley, wife of Harry Furley, deceased, was his only dependent at the time of his death'.

The employer and insurer on January 31, 1949 noted an appeal to the Superior Court of Baltimore City by serving a copy of the notice of appeal on one of the Commissioners. Notice of the appeal was not filed in court. On February 1, 1949 by letter to the Commission, counsel for the employer and insurer requested 'that the preparation of the transcript of the record herein be deferred until you receive further word from me.' On April 28, 1949, as shown by a note in the Commission's file, the reporter was informed that counsel for the employer and insurer requested him 'to go ahead and send it to court per usual.' The record was forwarded and received by the Clerk of the Court on July 18, 1949. On July 29, 1949 the employer and insurer filed a motion to reverse the 'award and order of State Industrial Accident Commission dated January 13, 1949' and direct it to 'pass an order denying the claim of Tillie Furley, widow, to any of the benefits of the award of [December] 6, 1946 which had not become due and payable prior to [his] death.' On August 18, 1949, the claimant filed a motion ne recipiatur, on the ground that the appeal was not taken in time; that the request that the preparation of the transcript be deferred was, in effect, a dismissal of the order for appeal, which could not thereafter be reinstated. This motion was overruled and on October 21, 1949 the court passed an order reversing the 'action' of the Commission and entered judgment for costs in favor of the employer and insurer. From that order the widow entered an appeal to this court. On November 18, 1949 the widow, having qualified as administratrix of the estate of Harry Furley, intervened as administratrix, by leave of court, and also filed an appeal to this court.

The appellants contend (1) that the court should have granted its motion ne recipiatur; (2) that the judgment of the court should be reversed, and the award of the Commission affirmed or the case remanded to the Commission with directions to enter an award of the unpaid balance to the widow, or to the administratrix. The appellees contend the judgment should be affirmed on the ground that the liability for payment of the unpaid balance of the award did not survive the death of the employee, and that the request for deferment was not a dismissal of the appeal. The appellees also suggested in argument that in any event the order of the Commission was not a final order. Under Section 39, Article 101 of the Code, it is the duty of the Commission when any claim is filed to 'make or deny an award, determining such claim for compensation, and file the same in the office of the Commission, together with a statement of its conclusions of fact and rulings of law.' By Section 67(5) "Compensation' means the money allowance payable to an employee or to his dependents * * *'. These sections do not contemplate that the Commission should make findings of fact or rulings of law in vacuo. An appeal is allowed, not from a finding or opinion of the Commission, but from its 'decision', disposing of the case. Liggett & Meyers Tobacco Co. v. Goslin, 163 Md. 74, 78, 160 A. 804. Cf. Big Vein Coal Co. v. Leasure, Md., 64 A.2d 563. An order that the widow was the sole dependent was not an award determining her claim for compensation. It is conceded that the widow was the sole dependent. It is also conceded that she was not entitled by reason of the death. Cf. Lord Baltimore Hotel Co. v. Doyle, Md., 64 A.2d 557, 558. The sole question is whether the claim of the employee survives or abates.

The order not only failed to award the balance of the claim to the widow, but in so far as it incorporated a ruling that the personal representative was entitled, it was adverse to the widow's claim. Yet the widow did not appeal. In so far as the order undertook to adjudicate the rights of a personal representative not a party to the proceeding, it was nugatory and cannot stand.

It is contended however, that the order must be taken to mean that the widow was directly or indirectly entitled to the unpaid balance, the amount of which in not in dispute. It is difficult to see how it could be given that meaning, but since the questions were fully argued in the court below and in this court, we...