Victory Sparkler & Specialty Co. v. Francks

Decision Date12 February 1925
Docket Number89.
Citation128 A. 635,147 Md. 368
CourtMaryland Court of Appeals

On Motion for Modification of Judgment, April 8, 1925.

Appeal from Circuit Court, Caroline County; William H. Adkins, Lewin W. Wickes and Thomas J. Keating, Judges.

Action by Catherine R. Francks, an infant, by her father and next friend, John L. Francks, against the Victory Sparkler & Specialty Company. Defendant's demurrer to the replication to its pleas was overruled, and after trial had judgment was extended in favor of plaintiff. From the adverse ruling on its demurrer, defendant appeals. Reversed.


Joseph Townsend. England and Vernon Cook, both of Baltimore (Tyler & England, of Baltimore, on the brief), for appellant.

William L. Rawls, of Baltimore (Joshua Clayton, of Elkton, J. Owen Knotts, W. Brewster Deen, and Wesley E. Thawley, all of Denton, and Marbury, Gosnell & Williams, and Wm. Pepper Constable, all of Baltimore, on the brief), for appellee.


The appeal is from a judgment of $22,500 recovered against the appellant for the benefit of a young girl, who had contracted phosphorus poisoning while employed in the making of fireworks for the appellant. The company's pleas were to the effect (1) that it was an employer engaged in an extrahazardous employment within the Maryland Workmen's Compensation Act, and had secured compensation to its employees by insurance in conformity with the act in an authorized assurance carrier; and (2) that the girl was its servant at the time she sustained the injury complained of which arose out of and in the course of this employment; and (3) that the employer had fully complied with all the provisions of the act, and was ready and able to pay her the compensation to which she was entitled thereunder; and (4) that this liability for compensation was exclusive. There was a replication to the pleas containing this defense that denied that the injuries alleged in the declaration were accidental personal injuries, but asserted that they "were the result of the gradual contraction of a disease known as "phosphorus poisoning" caused by the inhalation of fumes and gases wrongfully and negligently permitted and allowed by the defendant to be collected in the place in which the said plaintiff worked for said defendant, as alleged in the plaintiff's declaration." The appellant demurred to this replication, which was overruled, and the case went to trial, and, after proof, a verdict was rendered against the appellant and judgment was extended in favor of the appellee. The case is brought up on the demurrer, and the rulings of the lower court on the evidence and prayers are not before us.

The demurrer presented the question involved in the approved manner, and we do not consider that the act of 1914, c. 110 has any effect on the right of the appellant to have determined the correctness of the lower court's action on the demurrer. The affirmance or reversal of the judgment is on the question of law raised by the demurrer. Prejudicial error on demurrer depends, as a rule, upon the then state of the pleadings, and not on what occurred later in the course of the trial. After the ruling on the demurrer against the defendant it was necessary, as well as the established practice, to go to trial, to take proof and to have a verdict and judgment, and then the right of a review of the ruling on a demurrer cannot be denied. Emersonian Apartments v. Taylor (1918) 132 Md. 209, 103 A. 423; Kendrick & Roberts v. Warren Bros., 110 Md. 76, 72 A. 465. The provisions of the act of 1914, c. 110, apply to prayers, and require that, if a prayer is to present a question of variance between the pleadings and the evidence, it must state specifically the points wherein it is claimed such variance exists. The act furnished no sufficient basis for the appellee's contention that, through the omission from the record of the testimony and of the prayers, and of the exceptions thereon, it does not affirmatively appear that the appellee did not recover the judgment on an entirely different case from that set up in the declaration; or that, if the appellee had so recovered, the appellant had raised the question of variance as pointed out by the act of 1914, c. 110. The important function of a demurrer is recognized in the act of 1914, c. 109, where it is provided that no question of the sufficiency of the pleadings as stating a cause of action as a defense, which might have been raised by demurrer, shall be raised by prayer or instruction at the trial.

The court must assume that the trial below proceeded in harmony with the pleadings, and that the proof admitted conformed to them, in the absence of anything in the record to the contrary. Such an assumption is a practical necessity, and is founded on an obviously sound principle of procedure. Furthermore, as the decisive question was determined on the pleadings, the incorporation of the proof and the prayers would have made an unjustifiable increase of the cost of the record.

The appellant was engaged in an extrahazardous employment, and was not in default under any of the requirements of the Workmen's Compensation Act, and the girl was in his service when she gradually contracted, through her employer's negligence, phosphorus poisoning in the course of and arising out of her employment. The pleadings raised these two legal questions: Was the employer liable at common law to the servant, if her injury was not compensable under the terms of the Workmen's Compensation Act? and, Was not the disease of phosphorus poisoning an injury outside of the purview of the act? The lower court answered both these inquiries in the affirmative, and they are here renewed for a final determination.

1. The act of 1914, c. 800, has a preamble, reciting that the then subsisting law with respect to injuries sustained by workmen in the course of their employment was inadequate, unsatisfactory, and uneconomic from the standpoint of the best interests of the workmen, the employer, and the state, and these introductory recitals were followed by this sequent paragraph:

"Now, therefore, the state of Maryland, exercising herein its police and sovereign power, declares that all phases of extra-hazardous employments be, and they are hereby withdrawn from private controversy, and sure and certain relief for workmen injured in extra-hazardous employments and their families and dependents are hereby provided for, regardless of questions of fault and to the exclusion of every other remedy, except as provided in this act."

The quoted paragraph has the solemnity, sanctions, and form of a statutory enactment, with the exception of a compliance with the provisions of the Constitution of the state providing that:

"The style of all laws of this state shall be--be it enacted by the General Assembly of Maryland." Article 3, § 29.

See McPherson v. Leonard, 29 Md. 377, 386-389; Prince George's County v. B. & O. R. Co., 113 Md. 179, 182, 183, 77 A. 433; Williams v. Broening, 135 Md. 232, 108 A. 781. While it is not the court's purpose to hold that this paragraph is a part of the body of the statute, yet the Legislature could not have gone much further in stressing its intention to make the terms of the law exclusive within its indicated scope. Furthermore, this preliminary declaration is, in substance, incorporated in the text of the act. Northern Pac. R. R. Co. v. Meese, 239 U.S. 614, 36 S.Ct. 223, 60 L.Ed. 467. See section 6604--1 of Washington Act (Rem. Code 1915), at p. 937 of U.S. Bulletin (1921) Workmen's Compensation Legislation.

In section 14 of the act (Laws 1916, c. 597) it is provided that: "Every employer subject to the provisions of this act, shall pay or provide as required herein compensation according to the schedules of this act for the disability or death of his employee resulting from an accidental personal injury sustained by the employee 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 employee to bring about the injury or death of himself or of another, or where the injury results from the intoxication of the injured employee while on duty."

In respect to the liability imposed by the provisions last quoted, the same section declares:

"The liability prescribed by the last preceding paragraph shall be exclusive, except that if an employer fail to secure the payment of compensation for his injured employees and their dependents as provided in this act, an injured employee or his legal representative in case death results from the injury, may, at his option, elect to claim compensation under this act, 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 employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee." See sections 57, 59.

And later on, when the act prescribes the compensation for the workman or his family or dependents, section 36 (Laws 1916, c. 368) explicitly sets forth:

"Each employee (or in case of death his family or dependents), entitled to receive compensation under this article shall receive the same in accordance with the following schedule, and except as in this article otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever."

The use of the word "payment" for this sentence has no other significance than it was demanded to make this...

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    ...rise to the injury.” The Harris Court also relied on the leading Maryland workers' compensation case, Victory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 128 A. 635 (1925), which described the purpose of the Workers' Compensation statute as follows: The statutory definition of injury,......
  • Johnson v. Mayor & City Council of Baltimore
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    ...industry, and it is the usual result or concomitant.” 7 Polomski, 344 Md. at 78 n. 8, 684 A.2d 1338 (quoting Victory Sparkler Co. v. Francks, 147 Md. 368, 379, 128 A. 635 (1925)). Although the Maryland Workers' Compensation Act in roughly its present form dates from 1914, see 1914 Md. Laws ......
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    ...from the standpoint of the best interest of the workmen, the employer and the State[.]” Victory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 373, 128 A. 635, 636 (1925). The Act [428 Md. 36]was designed to effectuate the following balance: “on one hand, the Act took away employees' rig......
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