Solvuca v. Ryan & Reilly Co.

• Decision Date: 23 June 1916
• Docket Number: 47.
• Citation: 98 A. 675,129 Md. 235
• Parties: SOLVUCA v. RYAN & REILLY CO.
• Court: Maryland Court of Appeals

98 A. 675

129 Md. 235

SOLVUCA v. RYAN & REILLY CO.

No. 47.

Court of Appeals of Maryland

June 23, 1916

On Motion for Modification September 8, 1916.

Appeal from Baltimore Court of Common Pleas; Walter I. Dawkins Judge.

Action by Antoni Solvuca, alias Antony Salvucci, against the Ryan & Reilly Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial awarded.

Argued before BOYD, C.J., and BRISCOE, BURKE, URNER, STOCKBRIDGE and CONSTABLE, JJ.

David Ash, of Baltimore, for appellant. Edwin W. Wells, of Baltimore, for appellee.

J Walter Lord, of Baltimore, for State Industrial Accident Commission.

BOYD C.J.

The appellant sued the appellee in the court of common pleas of Baltimore city to recover damages alleged to have been sustained by him in that city while in the employ of the appellee, by the caving in of a trench in which he was working, which was caused by the negligence of the appellee in not properly supporting or bracing the sides of the trench. The appellee on June 18, 1915, filed a demurrer simply alleging "that said declaration is bad in substance and insufficient in law." Subsequently an agreement of attorneys was filed as follows "It is agreed this 1st day of October, 1915, between the respective parties to this action, that all objections to the legal sufficiency of the declaration in said case are waived, excepting the single objection as to the jurisdiction of the court over causes of action by or between employers and employés engaged in extrahazardous employment."

The learned judge below filed an opinion in which he said:

"I understand that it is admitted that the case made out in the declaration falls within the purview of the so-called Workmen's Compensation Law, if that law be constitutional."

For reasons therein given, he sustained the demurrer, and on the same day judgment for defendant (now appellee) on the demurrer was entered. From that judgment this appeal is taken.

It was thus attempted to test by a demurrer to the declaration, with the aid of the agreement, the right of an employé to sue his employer for injuries sustained by reason of the alleged negligence of the employer in not furnishing him a safe place to work in, it being contended by the defendant that chapter 800 of the Acts of Assembly of 1914, now codified as article 101 of the Annotated Code, and known as the Workmen's Compensation Act, deprived the court of jurisdiction over such suits. The argument was for the most part confined to the question of the validity vel non of that act, the appellant contending that it is unconstitutional.

Section 14 provides in the first paragraph that:

"Every employer, subject to the provisions of this article, shall pay or provide as required herein compensation according to the schedules of this article for the disability or death of his employé resulting from an accidental personal injury sustained by the employé arising out of and in the course of his employment, without regard to fault as a cause of such injury, except where the injury is occasioned by the willful intention of the injured employé to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employé while on duty," etc.

Section 15 provides that:

"The employer shall secure compensation to his employés in one of the following ways."

And it then authorizes insuring and keeping insured the payments of such compensation in: (1) The state accident fund; (2) in a stock corporation or mutual association authorized to transact the business of workmen's compensation insurance in this state; or (3) to secure the payments of the compensation himself, as therein provided. Section 32 is:

"Compensation provided for in this article shall be payable for injuries sustained or death incurred by employés engaged in the following extrahazardous employments."

And there then follow 42 subsections enumerating various employments, and subsection 43 is:

"In addition to the employments set out in the preceding paragraphs, this article is intended to apply to all extrahazardous employments not specifically enumerated herein."

Section 33 provides that any employer and his employés engaged in works not extrahazardous within the meaning of the article "may by their joint election" accept the provisions of the article.

It was conceded at the argument that the plaintiff was engaged in extrahazardous employment, and the declaration alleges that he was injured while at work in the city of Baltimore. But we do not feel called upon to pass on the constitutionality of the act, as the case is presented. There is nothing whatever on the face of the declaration to indicate that the court did not have jurisdiction, unless it be the mere fact that an employé is suing an employer for damages for an injury sustained while engaged in a work, which seems to be conceded to be extrahazardous employment as defined by the act. Nor is there anything in it suggesting, much less alleging, that the appellee had secured payment of compensation to his employés in either of the ways provided for by the act. There have already been a great many cases decided in reference to such statutes, when the short time they have been in force in this country is considered, but we have found none that have gone to the extent of holding that, when an act of this kind is passed, there is a presumption that every employer engaged in work in any of the classes for which compensation is provided has complied with its requirements, and is entitled to the benefits of the act, so as to be protected from a suit in court by his employé.

The second paragraph of section 14 contains the following:

"The liability prescribed by the last preceding paragraph [quoted above] shall be exclusive that if an employer fail to secure the payment of compensation for his injured employés and their dependents as provided in this article, an injured employé or his legal representative in case death results from the injury, may at his option, elect to claim compensation under this article, or to maintain an action in the courts for damages on account of such injury; and in such an action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant or that the employé assumed the risk of his employment, or that the injury was due to the contributory negligence of the employé."

There is a manifest error in the use of the word "that" in the second line of the above quotation. In the New York statute it reads "except that if an employer fail," etc., and in Bulletin No. 185 of the United States Department of Labor, Bureau of Labor Statistics, it seems to be assumed that "but" was intended in place of "that." Chapter 597 of Acts of 1916 amended the section by inserting the word "except." But whatever particular word or expression was intended, it is clear that the Legislature meant to say that the liability for compensation shall not be exclusive, if the employer fails to secure the payment of compensation as required by the act, and, in case of such failure, left it optional with the employé, or his representative, if death results from the injury, either to claim compensation under the act, or to sue in court for damages. The real question properly before us is whether the employé, if he sues, must set out in his declaration the failure of the employer to comply with the requirements of the act, or that he is not subject to its provisions, or whether the defendant should plead the facts he claims protect him from suit, or rely on them in his defense. We are of opinion that the burden should be and is on the defendant to show that he has complied with the act and is subject to its provisions. If ...