State v. Francis

• Citation: 134 A. 26,151 Md. 147
• Decision Date: 11 June 1926
• Docket Number: 44.
• Parties: STATE, FOR USE OF MAYOR AND CITY COUNCIL OF BALTIMORE ET AL., v. FRANCIS ET UX.
• Court: Court of Appeals of Maryland

134 A. 26

151 Md. 147

STATE, FOR USE OF MAYOR AND CITY COUNCIL OF BALTIMORE ET AL., v. FRANCIS ET UX.

No. 44.

Court of Appeals of Maryland

June 11, 1926

Appeal from Baltimore Court of Common Pleas.

"To be officially reported."

Action by the State for the use and benefit of the Mayor and City Council of Baltimore, employer, and another against J. H Francis and wife. From a judgment for the defendants on demurrer, plaintiffs appeal. Reversed, and new trial awarded.

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

Charles C. Wallace, City Sol., of Baltimore, for appellants.

P August Grill, of Baltimore (Richard S. Culbreth, of Baltimore, on the brief), for appellees.

URNER J.

A demurrer to the declaration in the plaintiff's reimbursement suit, under the Workmen's Compensation Act was sustained on the ground that the suit was not brought within two months after compensation to the dependents of the fatally injured employee was awarded by the State Industrial Accident Commission. The appeal is from a judgment for the defendant on the demurrer.

As originally enacted by chapter 800 of the Acts of 1914, the Workmen's Compensation Act contained the following provision:

"Sec. 57. Where the injury or death for which compensation is payable under this act 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 case of death, his personal representative 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 act, or in case of joint tort-feasors against both; and if compensation is claimed and awarded or paid under this act any employer may enforce for the benefit of the insurance company or association carrying the risk or the state accident fund, or himself, 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 act, then any such excess shall be paid to the injured employee, or, in case of death, to his dependents, less the employer's expenses and costs of action."

This section, afterwards codified as section 58 of article 101 of the Code, was construed in Hagerstown v. Schreiner, 135 Md. 650, 109 A. 464, where the dependents of an employee, after receiving an award under the Workmen's Compensation Act, on account of his death in the course of his employment sued the employer and the city of Hagerstown as joint tort-feasors, alleging that the employee's death was caused by their joint negligence, and, in deciding that the suit was not maintainable, this court said:

"We think the plain meaning of section 58, so far as concerns the question here involved, is this: If the injury or death has been caused under such circumstances as to fix a legal liability upon some person or persons, other than the employer, the employee, or, in case of his death, his personal representatives or dependents, may elect to sue such other person or persons at law, or may claim compensation under the act, but he or they cannot pursue both remedies. If he or they accept compensation under the act, such payment must be held as declared by section 36, art. 101, to be 'in lieu of any and all rights of action whatsoever against any person whomsoever.' This construction is in accord with the design and general purpose of the act, and is in harmony with its provisions, and it finds support in Frazier v. Leas, 127 Md. 572 [, Salvuca v. Ryan & Reilly Co., 129 Md. 235 , Adleman v. Ocean Accident and Guarantee Co., 130 Md. 572 [101 A. 529, Ann. Cas. 1918B, 730], and Salvuca v. Ryan & Reilly Co., 131 Md. 265 ."

That decision was rendered on January 16, 1920, and it was soon followed by an amendment of section 58 of article 101 of the Code (volume 3) by chapter 456 of the Acts of 1920, which extended the right of action therein mentioned to the insurer or state accident fund, and added to the section a clause providing:

"If any such employer, insurance company, association, or state accident fund shall not within two months from the passage of the award by 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 after 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 the

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