State v. New York, P. & N. R. Co.

• Decision Date: 22 June 1922
• Docket Number: 36.
• Citation: State v. New York, P. & N. R. Co., 141 Md. 305, 118 A. 795 (Md. 1922)
• Parties: STATE, for the Use of STATE ACC. FUND et al. v. NEW YORK, P. & N. R. CO.
• Court: Maryland Court of Appeals

118 A. 795

141 Md. 305

STATE, for the Use of STATE ACC. FUND et al. v. NEW YORK, P. & N. R. CO.

No. 36.

Court of Appeals of Maryland

June 22, 1922

Appeal from Circuit Court, Wicomico County; Joseph L. Bailey and Robert F. Duer, Judges.

"To be officially reported."

Suit by the State of Maryland, for the use of the State Accident Fund and another, against the New York, Philadelphia & Norfolk Railroad Company. From an order overruling demurrer to the plea and judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

Amos W W. Woodcock, Asst. Atty. Gen., and Alexander Armstrong, Atty Gen., for appellant.

George H. Myers, of Princess Anne (Miles & Myers, of Princess Anne on the brief), for appellee.

URNER J.

The State Industrial Accident Commission, on January 25, 1921, ordered that George U. McAllen, employer, and the State Accident Fund, insurer, pay certain weekly amounts to Rachel Johnson, the widow and sole dependent of Frank M. Johnson, as compensation for his death from an injury which arose out of and in the course of his employment. The accident which resulted in Johnson's death occurred while he was employed by McAllen in loading mine props on cars by means of a derrick erected and operated on the property of the New York, Philadelphia & Norfolk Railroad Company by its permission. It is the purpose of this suit by the state, for the use of the State Accident Fund and Rachel Johnson, to recover damages from the railroad company under section 58 of the Workmen's Compensation Act (Code art. 101) on the ground that Johnson was killed by an electric current with which a chain on the derrick he was operating became charged from an uninsulated wire, conveying electricity of high and deadly voltage, alleged to have been negligently maintained by the company in dangerous proximity to the derrick and without notice of the peril thus created. The defense to the suit, as set forth in a special plea, is that the derrick was allowed to be erected and used under a license agreement containing a provision that McAllen would indemnify the Railroad Company from and against all claims for damages sustained by any person or corporation, and arising in any manner or under any circumstances, through the exercise of the right which the agreement conferred. A demurrer to this plea was overruled, and, the plaintiff declining to file a replication to the plea, a judgment was entered for the defendant. The appeal from the judgment so rendered is for the purpose of securing a ruling of this court upon the question as to whether the agreement of the employer of the deceased workman to indemnify the present defendant against any liability for the accident which caused his death is a bar to this suit brought under the terms of the Workmen's Compensation Act. By section 58 of that statute, as amended by the Acts of 1920, chapter 456, which became effective before the fatal injury with which the suit is concerned, it is provided:

"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 the case of death his personal representatives 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, if he is self-insured, insurance company, association or the State Accident Fund may enforce for their benefit, 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 expenses and costs of action incurred by the employer, insurance company, association, or State Accident Fund, as the case may be. 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

...