Maryland Cas. Co. v. Union Bridge Elec. Mfg. Co.

• Decision Date: 02 May 1924
• Docket Number: 36.
• Citation: 125 A. 762,145 Md. 644
• Parties: MARYLAND CASUALTY CO. ET AL. v. UNION BRIDGE ELECTRIC MFG. CO.
• Court: Maryland Court of Appeals

125 A. 762

145 Md. 644

MARYLAND CASUALTY CO. ET AL. v. UNION BRIDGE ELECTRIC MFG. CO.

No. 36.

Court of Appeals of Maryland

May 2, 1924

Appeal from Circuit Court, Carroll County; Robert Moss, Judge.

Action by the Maryland Casualty Company, for its own use and to the use of Iva N. Arbaugh and others, against the Union Bridge Electric Manufacturing Company. From an order sustaining a demurrer to the narr., and refusing to permit amendments plaintiffs appeal. Reversed and remanded.

Offutt J., dissenting.

Argued before THOMAS, PATTISON, URNER, ADKINS, OFFUTT, and DIGGES JJ.

Austin J. Lilly, of Baltimore, and Guy W. Steele, of Westminster (Clapham Murray, Jr., of Baltimore, and Joseph D. Brooks, of Westminster, on the brief), for appellants.

Francis Neal Parke, of Westminster (Leon R. Yourtee, of Hagerstown and James A. C. Bond, of Westminster, on the brief), for appellee.

ADKINS J.

This appeal is from an order sustaining a demurrer to the narr. filed by the insurer, for its own use and for the use of the dependents of a deceased employee, against an alleged tort-feasor, under section 58 of the Workmen's Compensation Act (3 Code Pub. Gen. Laws, art. 101), and from the refusal of the trial court to permit certain amendments to the narr. The narr. was as follows:

"The plaintiff, Maryland Casualty Company, a body corporate, for its own use and to the use of Iva R. Arbaugh, Marion W. Arbaugh, Mabel L. Arbaugh, Benton A. Arbaugh, Ralph C. Arbaugh, and Charles G. Arbaugh, by Guy W. Steele, its attorney, sues Union Bridge Electric Manufacturing Company, a body corporate, for that heretofore, on or about the 13th day of September, 1922, Benton W. Arbaugh, deceased, was employed by the board of education of Carroll county, state of Maryland, to assist in making repairs and changes to the school property in Carroll county and was engaged in repairing the heating plant in the Linwood schoolhouse, located at Linwood, Carroll county, state of Maryland, at the time of the happening of the wrong hereinafter mentioned; that in order to make the aforesaid changes and repairs it became necessary for the said Benton W. Arbaugh to go upon the roof of the said schoolhouse, in order to rebuild a chimney located on the said roof; that the defendant, the Union Bridge Electric Manufacturing Company, a body corporate, through its agents and servants, negligently maintained wires, heavily charged with electricity, within a few inches of the roof of the said schoolhouse; that the said Benton W. Arbaugh, not knowing or having any reason to know the dangerous condition of the said wires, while performing his work on or near the said roof, came in contact with the said wires and was immediately electrocuted; that the death of the said Benton W. Arbaugh was directly caused by the negligence and want of care of the agents and servants of the said defendant in maintaining an unprotected, highly charged wire within a few inches of the roof of said schoolhouse, and without negligence or want of care on the part of the said Benton W. Arbaugh directly contributing thereto; that heretofore, Iva N. Arbaugh, the widow of Benton W. Arbaugh, and Marion W. Arbaugh, Mabel L. Arbaugh, Benton A. Arbaugh, Ralph C. Arbaugh, and Charles G. Arbaugh, the children of Benton W. Arbaugh, made claim for compensation against the employer of Benton W. Arbaugh, to wit, the board of education of Carroll county, before the State Industrial Accident Commission of Maryland, under the provisions of article 101 of the Public General Laws of the state of Maryland and amendments thereto, commonly known as the Workmen's Compensation Act, and the said State Indusarial Accident Commission did heretofore, to wit, on the 28th day of September, 1922, find, as a matter of fact, that the said Benton W. Arbaugh was injured on the 13th day of September, 1922, while in the employ of the board of education of Carroll county; that as a result of said injury he died on the same day; that the said injury and death arose out of and in the course of his employment; that his average weekly wage was eighteen dollars ($18.00), and that he left, surviving him, his widow, Iva N. Arbaugh, and Marian W. Arbaugh, Mabel L. Arbaugh, Benton A. Arbaugh, Ralph C. Arbaugh, and Charles G. Arbaugh, children. And the said board of education of Carroll county had duly insured its liability under the Workmen's Compensation Act aforesaid with the Maryland Casualty Company, and in pursuance of which findings of fact the said Commission, on the 28th day of September, 1922, did, in the due exercise of its authority, order the said board of education of Carroll county, the employer, and the Maryland Casualty Company, as insurer, to pay unto Iva N. Arbaugh, widow of Benton W. Arbaugh, deceased, compensation at the rate of twelve dollars ($12.00) per week, payable weekly for the period of four hundred sixteen (416) weeks, said compensation to begin as of the 13th day of September, 1922. And it was further ordered by the said Commission that the said employer and insurer should also pay unto the said Iva N. Arbaugh funeral expenses, not to exceed one hundred twenty-five dollars ($125.00), incurred by reason of the death of her husband, and the said Iva N. Arbaugh was further ordered and directed to apply such compensation to the use of herself and her children, Marian W. Arbaugh, Mabel L. Arbaugh, Benton A. Arbaugh, Ralph C. Arbaugh, and Charles G. Arbaugh, in such proportion as to her might seem best; that the said Maryland Casualty Company was at the time of the accidental injury to the said Benton W. Arbaugh, deceased, insurer of the said board of education of Carroll county, under and pursuant to the Workmen's Compensation Act aforesaid, and by reason of its obligation as such insurer has paid compensation so awarded, as aforesaid, and has paid, or rendered itself liable to pay, sums of money for medical treatment to the said Benton W. Arbaugh, deceased, and has incurred other rightful expenses in and about his injuries and death as herein set forth,"

--and the plaintiff claims $30,000 damages.

And the demurrer was as follows:

The defendant, by Leon R. Yourtee and Bond & Parke, "its attorneys, demurs to the plaintiff's declaration, and for cause for such demurrer says: (1) That the said declaration is bad in substance. (2) That the said declaration is insufficient in law. (3) That the board of education of Carroll county, mentioned in the plaintiff's declaration, is not within the scope, terms, and provisions of the Workmen's Compensation Act of the state of Maryland, known as article 101 of the Code of Public General Laws of the state of Maryland, with the acts amendatory thereof and supplementary thereto. (4) That it appears from the declaration in this case that the case was not brought within two months from the date of the award of the State Industrial Accident Commission of Maryland. (5) That it appears from said declaration that Benton W. Arbaugh, the person named in

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