Vang Const. Co. v. Marcoccia

• Decision Date: 08 February 1928
• Docket Number: 84.
• Parties: VANG CONST. CO. ET AL. v. MARCOCCIA.
• Court: Maryland Court of Appeals

140 A. 712

154 Md. 401

VANG CONST. CO. ET AL. v. MARCOCCIA.

No. 84.

Court of Appeals of Maryland

February 8, 1928

Appeal from Circuit Court, Allegany County; D. Lindley Sloan, Judge.

"To be officially reported."

Proceeding under the Workmen's Compensation Act by Mrs. Grazio Marcoccia, claimant, to recover compensation for the death of her son, Sante Marcoccia, opposed by the Vang Construction Company, employer, and the Maryland Casualty Company insurer. An award by the State Industrial Accident Commission was confirmed by the circuit court, and the employer and insurance carrier appeal. Reversed and remanded.

Urner J., dissenting.

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

Clapham Murray, Jr., and G. Randolph Aiken, both of Baltimore (Austin J. Lilly, of Baltimore, and F. Brooke Whiting, of Cumberland on the brief), for appellants.

Walter C. Capper, of Cumberland (Paul L. Hitchins and Hugh A. McMullen, Jr., both of Cumberland, on the brief), for appellee.

PARKE J.

Sante Marcoccia, an Italian bachelor and laborer, was employed by the Vang Construction Company, and on the 21st day of August, 1921, he received a fatal injury entitling his dependents to compensation under the Workmen's Compensation Act. Code, art. 101. Marcoccia was instantly killed, and three days later his employer filed with the State Industrial Accident Commission a report stating that the workman had been accidentally hurt, the time and place of the injury and death, the work upon which he was engaged at the time, how the accident occurred, the name of his employer, and his average weekly wage. On August 30th a report, dated August 25th, was likewise filed by Dr. H. V. Deming, a local physician, setting out the date of the accident, the nature of the work, and cause of death. There is no question that the claimant and appellee, Grazio Marcoccia, who has always resided in Italy, is the mother and sole partial dependent of the workman, within the meaning of the act. The employer had notice of the time, place, manner, and cause of the injury and death, and, under the circumstances, no further notice was required of the dependent.

The single question is, Has there been a compliance by the claimant with this second paragraph of section 39 of the act? "When death results from injury the parties entitled to compensation under this article, or some one in their behalf, shall make application for same to the commission within one year from the date of death, which application must be accompanied with proof of death and proof of relationship under this article, certificates of attending physician, if attended by a physician, and such other proof as may be required by the rules of the commission."

Before considering the interpretation to be given this paragraph, it will be necessary to know the facts to which the statute is to be applied:

On October 4, 1921, Hugh A. McMullen, Jr., Esq., addressed a letter to the State Industrial Accident Commission informing that body (1) that he represented "the claimants in interest" of the dead workman; (2) that the workman was survived by his mother, who lived in Italy and was his only dependent; (3) that the writer had procured a certain Nick Scarpelli, of Cumberland, Md., where the man was living at the time of his death to qualify as administrator; (4) that the writer would like to secure information from the commission as to the proper steps to be taken in making claim for compensation, and to know if the administrator could execute the various forms required by the commission. Mr. McMullen received a reply, dated October 5th, inclosing the necessary forms for dependents other than widow to present a claim for compensation with this commission, and advising him that nonresident alien dependents may be represented by the consular officers of the nation of which the dependents may be citizens or subjects, and in such cases the consular officers have the right to receive for distribution to such nonresident alien dependents all compensation awarded.

It is quite clear from this correspondence that neither the attorney intended his letter to be an application for compensation in behalf of the mother, nor did the commission accept or treat it as having been so made. Nor did the letter have a single requisite which would have characterized it, notwithstanding the object of the writer to the contrary, as being, in substance, an application. Even the name of the mother was not given, and there was no present demand for compensation in the name of any one, nor proof of death and relationship, and any possibility of considering the letter as a formal application is negatived by the writer's request for information as to what steps were necessary to be taken in making a claim for compensation.

Nothing more was done before the commission until a communication under date of January 6, 1923, was addressed to one of its members by Mr. McMullen. In this letter, Mr. McMullen explained that he had originally been employed by some of the dead man's compatriots to seek compensation, and that he had investigated and found that the only dependent was the man's mother, who was a resident of Italy, and that he "did not file any report with the State Industrial Accident Commission, but the Vang Construction Company filed the necessary report of the death of this employee."

The attorney knew that the mother's application for compensation was not before the commission, since he concluded the letter with a request for a reply advising him what steps should be taken, and whether "any affidavits or petitions are necessary, because of the delay in not filing the claim at an earlier date." The commission's reply was dated January 9, 1923, and informed its correspondent that the employer's and physician's reports were on file, "but that no claim had been filed by the dependents of the deceased." The letter then stated that the act required the application to be made within one year after the death, and that if the claim were now filed "it would be against the apparent intent of the act," but, as the law had never been construed by the commission, the application might be filed so as to present the matter to the commission for a construction. Not only had the statutory requirements not been complied with within the year prescribed, but both the claimant, through her counsel, and the commission accepted that as the actual situation.

On January 30, 1923, the mother filed an informal claim for compensation upon which the commission did not act, but on May 14, 1923, a formal claim for compensation was filed and notice was then given of the claim to the Vang Construction Company, employer, and the Maryland Casualty Company, insurer, the appellants. A request was then made by the appellants for a hearing on two issues (1) that the claim for compensation was not filed within one year of the date of death, and (2) that the workman had left no dependents, within the act. Upon hearing, the commission determined the mother was partly a dependent, and that finding has ceased to be a matter of controversy. But the decision in favor of the claimant upon the first issue is now the subject of this appeal. The ruling was based on the commission's excusing the failure to file the claim in time upon the grounds that an investigation was being made by the insurer and the attorney for the claimant, and that the employer's right to raise this issue was waived by mutual consent. Pursuant to these findings, an award was made, and the appellants were ordered to pay the compensation to the mother. An appeal was then taken, the questions were tried before the circuit court for Allegany county, sitting as a jury, and the decision and order of the commission was confirmed, whereupon the employer and the insurance carrier prayed this appeal.

The statement of the procedure in this cause makes it uncontrovertible that no application was filed within one year of the death of the employee, and this brings us to a consideration of the meaning and effect of the second paragraph of section 39 of article 101 of the Code. This paragraph in its original form as enacted by chapter 800, § 38, of the Acts of 1914, permitted a claim for compensation for an injury resulting in death to be made at any subsequent time, and it was not until the Act of 1920, c. 456, § 39, that the change was made inserting the subsisting provision restricting the application to the period within one year from the date of death. The intention of the Legislature is obvious, and the language appropriate, to prescribe the time at the end of which no application for compensation can be maintained. Compare Code, art. 57, § 1, et seq.

While the Legislature has provided that the Workmen's Compensation Act shall be interpreted and construed so as to effectuate its general purpose, it is the duty of the court to enforce this enactment without regard to consequences, where the legislative intention is so evident, the general object to provide a safeguard against fraud and oppression through stale damages is so salutary, and the evils it is designed to redress so patent as to make its enforcement a component part in the fulfillment of the general scheme of the Workmen's Compensation Act. Code, art. 101, § 63; Holland Mfg. Co. v. Thomas, 136 Md. 77, 110 A. 209; Scott v. Independent Ice Co., 135 Md. 343, 350, 354, 109 A. 117. See Green, Executor, v. Johnson et ux., 3 Gill & J. 394.

The limitation being for the benefit, primarily, of the employer and, secondarily, of the insurance carrier, the commission has no authority to excuse a failure to make the application for compensation within the period of limitation, since no such power was conferred, as is the case in...