Storrs v. Mech

• Decision Date: 17 January 1934
• Docket Number: 96.
• Citation: 170 A. 743,166 Md. 124
• Parties: STORRS ET AL. v. MECH ET AL.
• Court: Maryland Court of Appeals

170 A. 743

166 Md. 124

STORRS ET AL. v. MECH ET AL.

No. 96.

Court of Appeals of Maryland

January 17, 1934

Appeal from Superior Court, Baltimore City; Eli Frank, Judge.

Suit by Lucius S. Storrs and another, receivers for the United Railways & Electric Company of Baltimore, against George P Mech and another. From a judgment sustaining a demurrer to their declaration, plaintiffs appeal.

Reversed and new trial awarded.

OFFUTT J., dissenting.

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

Wallis Giffen, of Baltimore (Chas. A. Trageser and Philip S. Ball, both of Baltimore, on the brief), for appellants.

William L. Marbury, Jr., of Baltimore (Fendall Marbury, L. Wethered Barroll, and Marbury, Gosnell & Williams, all of Baltimore, on the brief), for appellees.

DIGGES Judge.

There is a single question presented by this appeal, which is raised by the action of the lower court in sustaining a demurrer to the plaintiff's declaration. The appeal is from that action. The facts, as set out in the declaration, and which are admitted by the demurrer, are that on or about February 29, 1932, William P. Frazier was an employee of the United Railways & Electric Company of Baltimore, engaged in doing track work for his employer in Baltimore city, at which time an automobile owned by the appellee, the Metal Package Company, a corporation, and driven by George P. Mech, who was the agent of the Metal Package Company, engaged in the business of his master, was, through the carelessness and negligence of the said Mech, caused to run into the said Frazier, and that as a direct result of the injuries caused by such negligence, Frazier shortly thereafter died; that Susie V. Frazier, sister of the deceased William P. Frazier, filed claim under the provisions of article 101 of the Code, the "Workmen's Compensation Law," and received an award against the United Railways & Electric Company for compensation amounting to $3,000, and for $125, being the amount of funeral expenses incurred by reason of the death of said William P. Frazier. Subsequently the employer brought suit against the tort-feasor to recover damages for the wrong inflicted upon the deceased for which compensation had been paid by the employer.

This compensation had been awarded and paid to Susie V. Frazier, a sister of the deceased employee; and the successful contention of the defendant below was that the employer could not recover in this suit because the person to whom the compensation had been paid could not recover at common law or under the Maryland statute generally spoken of as Maryland's Lord Campbell's Act. This act is codified as article 67, under the title, "Negligence causing death." By the first section thereof it is provided: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." Section 2 provides: "Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused and shall be brought by and in the name of the State of Maryland for the use of the person entitled to damages." Section 1 describes the circumstances under which a right of action accrues, and section 2 makes provision for and limits the persons for whose benefit such action shall be brought.

There is no argument needed, other than a reading of the plain language employed, to demonstrate that under the provisions of these two sections Susie V. Frazier, a sister of the deceased, is not entitled to the benefits of section 1, because being a sister, she is neither "wife, husband, parent and child" of the person whose death was caused; and if article 67 were the only statute involved, or to be considered, in the determination of the question, there could be only one answer, and that an affirmance. The case, however, is not so simple as that, because the provisions of the Workmen's Compensation Law, codified as article 101, deal also with persons who can recover for the wrongful act of another resulting in death, under certain conditions set forth in the provisions of that article, section 58 of which provides: "Where injury or death for which compensation is payable under this Article, 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 Article, or in case of joint tort-feasors against both; and if compensation is claimed and awarded or paid under this Article, 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 Article, and also any payments made for medical or surgical services, funeral expenses or for any of the other purposes enumerated in Section 37 of this Article, 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." William P. Frazier was an employee of the United Railways. He suffered an injury occasioned by the appellee, which resulted in death. His sister, Susie V. Frazier, was his sole dependent, and bore such relationship to the deceased as constituted her a dependent according to the provisions of section 36 of article 101, which are: "The following persons shall be presumed to be wholly dependent for support upon a deceased employee: A wife or invalid husband ('invalid' meaning one physically or mentally incapacitated from earning), a child or children under the age of sixteen years (or over said age if physicaly or mentally incapacitated from earning) living with or dependent upon the parent at the time of the injury or death. In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in death of such employee, but no person shall be considered as dependent unless such person be a father, mother, grandfather, grandmother, stepchild or grandchild, or brother or sister of the deceased employee, including those otherwise specified in this section."

Under these provisions it is abundantly evident that a sister is not such a person as is presumed to be dependent, but she is obligated to prove the fact of dependency. When this is successfully done, she is as certainly a dependent as a husband, wife, or child of the deceased employee. In the case of Clough & Molloy v. Shilling, 149 Md. 189, at page 195, 131 A. 343, 345, this court said: "It will be seen that where 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 therefor, the section gives to the parties specifically designated therein, under the conditions therein set forth, a right of action against a third party, the tort-feasor. The clear meaning of the language, 'under circumstances creating a legal liability in some person other than the employer,' is that the circumstances under which the injury was received created a liability resting upon the tort-feasor outside of the provisions of section 58, which means that if the injury did not result in death the injured party would have had a right of action at common law against the wrongdoer for such injuries, or, in case injury resulted in death, that the dependents would have had a right of action by reason of the liability then existing under Lord Campbell's Act. In other words, section 58 of article 101 does not create any new liability, but simply designates in what manner the liability theretofore existing, under the common law and Lord Campbell's Act, should be enforced, and changes the parties who might be benefited by such enforcement. Section 58 provides, in cases where there was an existing liability on the part of a third person, other than the employer, that in case of death the dependents, as defined in article 101, may proceed either by law against the tort-feasor or against the employer for compensation under the act, and that if they elect to proceed under the act, and compensation is awarded against an employer, where he is self-insured, or against the insurer, the employer in such case, or the insurer, may bring an action to enforce for their benefit the liability of the tort-feasor."

The question in the present case, therefore, is: Do the provisions of article 101, "Workmen's Compensation," enlarge or add to the persons who, under Lord Campbell's Act, could sue a tort-feasor for injuries resulting in death? There is nothing in conflict between the provisions of article 67, "Lord Campbell's Act," and article 101, "Workmen's Compensation." They both unquestionably deal with recovery for injuries resulting in death. The two statutes are in pari materia and must be construed together. Chesapeake & O. Canal Co. v. B. & O. R. Co., 4 Gill &...