Mattare v. Cunningham

• Decision Date: 11 June 1925
• Docket Number: 28.
• Parties: MATTARE v. CUNNINGHAM.
• Court: Maryland Court of Appeals

129 A. 654

148 Md. 309

MATTARE v. CUNNINGHAM.

No. 28.

Court of Appeals of Maryland

June 11, 1925

Appeal from Baltimore City Court; Chas. W. Heuisler, Judge.

"To be officially reported."

Action by Mary A. Cunningham against Charles A. Mattare. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Guy B Brown, of Baltimore (John W. Lohmuller, of Baltimore, on the brief), for appellant.

Paul Berman, of Baltimore, for appellee.

DIGGES J.

The question of importance presented by this appeal is the time necessary to erect the bar of limitations against an award made by the State Industrial Accident Commission. It is contended by the appellant that this period of limitation is three years, and by the appellee that an action may be maintained upon the award at any time within twelve years from its date. Which of these two conflicting contentions is correct is the question for decision.

The facts as disclosed by the record are simple and undisputed. The appellant was engaged in the general contracting business in the city of Baltimore during the year 1917, and among his employees was Samuel D. Cunningham, a son of the appellee. On March 2, 1917, he was accidently injured while in the course of his employment by the appellant. The injury was received in the course of, and growing out of, the said employment and resulted in the death of Samuel D. Cunningham. The appellant had not complied with the Workmen's Compensation Law, and, shortly after the death of Samuel D. Cunningham, his mother, the appellee, filed a claim for the death of her son against the appellant with the State Industrial Accident Commission. After a hearing, the Commission found that the injury that resulted in the death of Samuel D. Cunningham arose out of and in the course of his employment; that the deceased left surviving him his mother, the appellee in this case, who was partially dependent upon him for her support, and ordered the appellant to pay Mary A. Cunningham, the mother, $6 per week, payable weekly for the period of four years, to begin March 2, 1917, and also a sum not to exceed $75 for funeral expenses.

The appellant appealed from the award of the State Industrial Accident Commission to the Baltimore city court, where the appeal was heard with the aid of a jury on January 25, 1918, and resulted in a verdict in favor of the claimant, Mary A. Cunningham, for the sum of $4 per week for the period of four years from March 2, 1917. Subsequently, on February 13, 1918, the State Industrial Accident Commission modified its previous order to comply with the verdict of the jury, and ordered the appellant to pay the appellee compensation at the rate of $4 per week, payable weekly for the period of four years from March 2, 1917, and such sum not to exceed $75 as may have been paid for funeral expenses by reason of the death of Samuel D. Cunningham.

No portion of this award was ever paid by the appellant, and the appellee instituted suit in the Baltimore city court on March 1, 1924, to recover the amounts then due her under the award. The declaration contained the six common counts in assumpsit and two special counts. To this declaration the appellant filed three pleas--the first being "that the alleged causes of action did not accrue within three years before this suit"; the other two being general issue pleas. The appellee produced evidence in support of the allegations of the declaration, and the appellant offered no evidence. At the close of the testimony, the appellee offered two prayers, and the appellant five, as follows:

Plaintiffs first prayer: "The plaintiff prays the court to instruct the jury that, if they find from the evidence that the plaintiff, Mary A. Cunningham, was awarded the sum of $4 per week for a period of four years and a sum not to exceed $75 for funeral expenses for the death of her son, Samuel D. Cunningham, by a modified award of the State Industrial Accident Commission, and, if they further find that the said award was not paid by the defendant, and that the plaintiff spent a sum equal or in excess of $75 for funeral expenses, then their verdict must be for the plaintiff. (Granted.)"

Plaintiff's second prayer: "The plaintiff prays the court to instruct the jury that, if they find for the plaintiff, they may in their discretion allow interest on the amount due at the rate of 6 per cent. per annum from the date said amount was due. (Granted.)"

Defendant's first prayer: "The defendant prays the court to instruct the jury that the plaintiff has offered no evidence legally sufficient to entitle her to recover, and that their verdict must therefore be for the defendant. (Refused.)"

Defendant's second prayer: "The jury are instructed, at the defendant's request, that, under the pleadings and evidence in this case, the plaintiff is not entitled to recover, and therefore their verdict must be for the defendant. (Refused.)"

Defendant's third prayer: "The jury are instructed, at the defendant's request, that, under the pleadings and evidence in this case, the plaintiff cannot recover more than the last payment due under the amended award of the State Industrial Accident Commission, as offered in evidence, together with interest thereon in the discretion of the jury. (Refused.)"

Defendant's fourth prayer: "The defendant asks the court to rule as a matter of law, under the pleadings and evidence in this case, that the plaintiff is not entitled to recover more than the last week's payment due under the amended award of the State Industrial Accident Commission, as offered in evidence, together with interest thereon in the discretion of the jury. (Refused.)"

Defendant's fifth prayer: "The defendant prays the court to instruct the jury that under the pleadings and evidence in this case the plaintiff can recover only such sums (together with interest in the discretion of the jury) as the jury shall find became due and owing, and such sums as were admitted to be due and owing, and promised to be paid by the defendant to the plaintiff within three years prior to the institution of this suit. (Refused.)"

The trial court granted the plaintiff's prayers, and rejected the prayers of the defendant. This action of the court constitutes the single exception contained in the record. The defendant's first prayer was a general demurrer to the evidence, and, in the view we take of the case, was properly refused. The defendant's second prayer in which the defendant sought to have the court instruct the jury that under the pleadings and evidence in this case, the plaintiff is not entitled to recover, is too general in its form, and the court's action in rejecting it was correct. This form of prayer has repeatedly been passed upon by this court, and condemned for the reason stated. It is unnecessary to cite authorities at length, but we will refer to the late case of Taylor v. Commissioners of Perryville, 132 Md. 412, 104 A. 475. The third, fourth, and fifth prayers of the defendant, in varying form, ask the court to instruct the jury that the period...