William B. Tilghmaim Co., Inc. v. Conway

• Decision Date: 15 April 1926
• Docket Number: No. 36.,36.
• Citation: 133 A. 593
• Parties: WILLIAM B. TILGHMAIM CO., Inc., v. CONWAY.
• Court: Maryland Court of Appeals

133 A. 593

WILLIAM B. TILGHMAIM CO., Inc.,

v. CONWAY.

No. 36.

Court of Appeals of Maryland.

April 15, 1926.

Urner and Offutt, JJ., dissenting.

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

Action by Harry L. Conway by Henry L. Conway, father and next friend, against the William B. Tilghman Company, Incorporated. Judgment for plaintiff, and defendant appeals. Reversed, and new trial awarded.

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

Stanley G. Robins and F. Leonard Wailes, both of Salisbury (Ellegood, Freeny & Wailes, of Salisbury, on the brief), for appellant.

Levin C. Bailey, of Salisbury (Miles, Bailey & Miles and Alexander M. Jackson, all of Salisbury, on the brief), for appellee.

DIGGES, J. The appeal in this case is from a judgment of the circuit court of Wicomico county in favor of the appellee (plaintiff below) upon a verdict of a jury in that court. The plaintiff, Harry L. Conway, was an employee of the appellant (defendant below), William B. Tilghman Company, Incorporated, a corporation engaged in the manufacture of fertilizer. The plaintiff was employed about July 1, 1923, at which time he was under 14 years of age. On August 15, 1923, being then slightly above the age of 14, he was injured in the course of his employment by being struck by a piece of 2 by 4 timber which hit him in the eye, breaking his glasses and causing an injury which resulted in total blindness of his right eye. At the time of the accident he was assisting other employees of the appellant in demolishing a building. Other employees of the defendant were engaged in taking boards from the top and sides of the building and sliding them down to the ground. One of these boards, in falling from the building or being thrown down, hit the 2 by 4 which was on the ground, causing the same to fly up and hit the plaintiff in the eye. The record discloses that at the time of the accident the plaintiff was over 14 years of age and under 16, and did not have an employment certificate. The appellant had complied with the provisions of article 101 of the Code of Public General Laws, known as the "workmen's compensation article," by providing insurance in the state accident fund. Shortly after the accident application was made to the State Industrial Accident Commission for an award of compensation, and upon this application compensation was awarded by that board on September 22, 1923. After paying compensation for a number of weeks, the Industrial Accident Commission sent the following letter to the plaintiff:

"State Industrial Accident Commission, "741 Equitable Building, Baltimore, Maryland.

"Rescinded and Annulled Compensation Disallowed.

"Bureau of Claims.

"Claim No. 61749.

"Employee: Harry L. Conway.

"Employer: W. B. Tilghman Company.

"Insurer: The State Accident Fund.

"It has been brought to the attention of the commission' that the claimant in the above-entitled case was under 16 years of age at the time of injury and was not legally employed therefor. The former order passed in this case on September,22, 1923, will therefore be rescinded and annulled and compensation disallowed.

"It is therefore, this 22d day of November, 1923, by the State Industrial Accident Commission, ordered that the order of September 22, 1923, passed in this case be and the same is hereby rescinded and 'annulled, and in lieu thereof it is hereby ordered that the claim of Harry L. Conway filed in this case against W. B. Tilghman Company, employer, and state accident fund, insurer, be and the same is hereby disallowed."

Subsequent to the receipt of this letter the appellee instituted suit for the recovery of damages for the injury sustained. The declaration as amended contained two counts. The first of these counts was predicated upon the theory that the plaintiff was illegally employed by the defendant, and therefore was not entitled to be awarded compensation as provided for by the Workmen's Compensation Law, but that, nevertheless, he was entitled to maintain an action at law against the defendant for damages, in which suit the common-law defenses were not available to the defendant. In this count there is no allegation of negligence on the part of the defendant or its servants, but simply as allegation of the employment, the age of the plaintiff, the accident, the insurance by the defendant, and the rescission by the State Industrial Accident Commission of the order allowing compensation. The second count of the declaration constitutes a common-law action for damages due to the negligence of the defendant or its servants. The defendant demurred to the declaration and each count thereof, which demurrer was overruled. Subsequently the defendant filed sis pleas, to the first and fourth of which pleas the plaintiff demurred, and, the demurrer being sustained, the defendant filed an additional plea, which was likewise demurred to and the demurrer sustained. Issue was then joined upon the defendant's second, third, fifth, and sixth pleas, and trial proceeded with. During the course of the trial there were 13 exceptions reserved by the defendant; 12 being to the action of the court in its rulings upon the evidence, and the 13th to the ruling on the prayers.

The important questions presented by this appeal are:

First. Do the provisions of article 101, the Workmen's Compensation Law, apply to minor employees where such employment is illegal, being prohibited by the provisions of article 100 of the Code of Public General Laws, commonly referred to as the Child Labor Law?

Second. If the provisions of the Workmen's Compensation Law do not apply to minors illegally employed, can such a minor bring a common-law action against his employer for damages caused by an injury due to the negligence of the employer, its servants, or agents?

Third. If such an action can be maintained, can the defendant 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?

We will consider these questions in the order named. As to the first, we have been referred to no case in this court, and we have been unable to find one, in which this question has been passed upon. Article 101, § 14, Workmen's Compensation Law, provides:

"Every employer subject to the provisions of this article, shall pay or provide as required herein compensation according to the schedules of this article 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 solely from the intoxication of the injured employee while on duty. * * *

"The liability prescribed by the last preceding paragraph shall be exclusive, except that if an employer fails to secure the payment of compensation for his injured employees and their dependents as provided in this article, an injured employee or his legal representative in case death results from the injury, may, at his option, elect to claim compensation under this article, 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. * * *"

Section 33 of the same article provides:

"Any employer, his employee or employees engaged in works not extrahazardous within the meaning of this article may, by their joint election, filed with the commission, accept the provisions of this article and such acceptances when approved by the commission, shall subject them to the provisions of this article to all intents and purposes as if they had been originally included in its terms.

"Any workman of the age of 16 years and upwards may himself exercise the election hereby authorized. The right of election hereby authorized shall be exercised on behalf of any workman under the age of 16 years by his parent or guardian. Nothing herein shall be construed to apply to workmen of less than the minimum age prescribed by law for the employment of minors in the occupation in which such workmen shall be engaged. * * *"

Section 48 provides:

"A minor working at an age legally permitted under the laws of this state shall be deemed sui juris for the purposes of this article, and no other person shall have any cause of action or right to compensation for any injury to such minor employee unless otherwise herein provided."

The Child Labor Law (article 100, § 4) provides:

"No child under 14 years of age shall be employed, permitted or suffered to work in, about, or in connection with any mill, factory, workshop, mechanical establishment, tenement house, manufactory or workshop. * * *"

Section 10 of the same article provides:

"No child under 16 years of age shall be employed, permitted or suffered to work in, about or in connection with any establishment or occupation named in sections 4 and 5 unless the person, firm or corporation employing such child procures and keeps on file, and accessible to any attendance officer, inspector of factories, or other authorized inspector or officer charged with the enforcement of this subtitle, the employment certificate as hereinafter provided, issued to said child; and unless such employment, permission or sufferance to work in, about or in connection with said establishments or occupations shall be in accordance with the terms and regulations laid down for said employment certificates as hereinafter...