Harris v. Mayor of Baltimore

Offutt, J., delivered the opinion of the Court. John E. Harris, aged seventy-three years, was on June 29th, 1925, employed by the Park Board of Baltimore City as a park policeman under the authority conferred by sections 97 and 98 of the Revised Edition of 1915 of the Baltimore City Charter, which read as follows: “97. The said Board of Park' Commissioners shall have full power to employ and compensate all persons whom, in its judgment it may deem proper, in maintaining and supporting such parks, etc. * * * “98. The night watchman employed by the Board of Park Commissioners shall have, while on duty, the same powers that police in said city have as conservators of the peace.” While on duty, clothed in the uniform of a park policeman, and in the act of crossing a road in Druid Hill Park, he was on that day struck by an automobile, and so badly injured that he died on the 3d of July following.

On the tenth of July .Amelia M. Harris, his widow, filed with the Industrial Accident Commission a claim for compensation against the Mayor and City Council of Baltimore City on the ground that he was injured in the course of his duty as an employee of that corporation engaged in an extra-hazardous occupation. The claim was resisted by ¹³ the city and. it prayed the commission to hear and determine these issues: “1. Whether or not the above claimant sustained an accidental injury, arising out of and in the course of his employment by the Mayor and City Council of Baltimore. “2. Whether or not the Mayor and City Council of Baltimore was engaged in any extra-hazardous work in maintaining its public parks. “3.

Whether or not the deceased was a workman employed for wages, within the meaning of article 101 of the Annotated Code of Maryland.” A hearing was had, evidence taken, and at its conclusion, the commission decided that the injury arose out of and in the course of the decedent’s employment, and that such employment was extra-hazardous, but that he was not a workman employed for wages within the meaning of article 101 of Bagby’s Code P. G. L. of Md., and it accordingly denied the claim. Erom that order the claimant appealed to the Superior Court of Baltimore City, where in due course the appeal was heard. At that trial the record from the commission was read to the jury and, while no additional evidence was taken, counsel for the parties stipulated that “the decedent was employed by the Park Board of Baltimore City, under the general authority given in section 97 of the Charter of Baltimore City, Revised Edition 1915, and particularly by virtue of section 98 of said Charter.” At its conclusion the defendant offered three prayers, all of which were granted. The first prayer was a general demurrer to the evidence; the second ruled as a matter of law that the decedent was not a “workman employed for wages” within the meaning of the Workmen’s Compensation Act, and the third decided as. a matter of law that the Park Board was not engaged in extra-hazardous¡ work within the meaning of the act in maintaining Druid Hill Park, and upon that issue reversed the decision of the commission.

In accordance with those instructions a verdict was returned ¹⁴ for the defendant, upon which in dne course a judgment was entered, and from that judgment the claimant has appealed to this Court. ■ The only exception presented by the record relates to the court’s rulings on the three prayers to which we have referred, and it submits these questions, (1) Is a “park policeman” employed by the Park Board of Baltimore City an officer, or is he a “workman employed for Wages?” (2) If he is a workman employed for wages are his duties extra-hazardous? In addition to whát has been stated, the evidence, which was undisputed, showed that the claimant was entirely dependent on the decedent for her support and “that decedent was equipped, while on duty, with a uniform and a kind of espantoon; that the decedent’s uniform was the same as an everyday policeman, except the color of the uniform was gray instead of blue; that decedent’s duties were the same as a city policeman within the park jurisdiction; * * * that these park policemen are on duty twelve hours a day, seven days a week, and are employed for either night or day duty and are interchangeable, ‘shift the same man in night or day duty the same week or month, it depends <on circumstances’; that the park police arrest for violation ■of law in the parks, * * * but city policemen are an entirely separate force and decedent was employed exclusively by the Park Board, so far as witness (James V. Kelly, secretary to the Park Board) knows; that the Park Board is authorized to employ, by statute, all men necessary to look after the parks and that includes carpenters, workmen, stablemen and all types of workmen in the park.” It having been conceded that the decedent was injured while he was on duty, and it appearing from the evidence that the accident occurred at a place and under circumstances sufficient to warrant the inference that it arose out of and in the course of his employment, the propriety of the court’s action in granting the defendant’s first prayer, withdrawing the case from the jury, necessarily depends upon the soundness of the proposition involved in the de ¹⁵ fendant’s second prayer, which was granted, and upon whether the occupation in which the decedent was engaged, when he was injured was extra hazardous. Eor in granting the third prayer the court ruled that the defendant in “maintaining Druid Hill Park” was not en-, gaged in “an extra-hazardous work” within the meaning of the Compensation Act. That prayer was wholly collateral to the real question involved, which was not whether the entire business of maintaining that park was extra-hazardous, but whether the particular work which the decedent was called upon to perform was extra-hazardous, and as that question was not presented by the prayer it was meaningless, and should not have been granted, although it is not apparent how it could have injured the appellant.

But as the character of the employment may be involved in the ruling on the first prayer, that question must also be considered. We do not understand the defendant’s contention to be that hazards and danger are not natural and inherent in the employment in which the decedent was engaged, nor could such a contention be sustained if made. Because not only did it expose him to dangers incident to the protection of the city’s property, the suppression of disorder, the arrest and custody of violent and reckless persons engaged in violating the law, but necessarily it required him to traverse, cross, and patrol, at all hours of the day and night, roads and drives constantly used for the large volume of traffic usually found in such a park in a great city. But the defendant’s contention is rather that it was not an extra-hazardous “employment” or “work” within the meaning of the act, because decedent was but an agent of the’ municipality engaged in the performance of a purely governmental function.

And since that is but another way of' stating the proposition submitted by the defendants second prayer, we will consider it in connection with that prayer, and the question presented by the prayer and that contention is, as we have stated, whether a park policeman, employed by the Park Board of Baltimore City, is a workman em ¹⁶ ployed for wages' within the meaning of the act, or an officer, and without its scope. Under the terms of the statute the mere fact that the decedent was employed by a municipality does not decide the question, for it expressly provides (section 35, article 101, Bagby’s Code): “Whenever the State, county, city or any municipality shall engage in any extra-hazardous work, within the meaning of this article, whether for pecuniary gain or otherwise, in which workmen are employed for wages, this article shall be applicable thereto. In time of peace and while engaged in military service all officers and enlisted men of the organized militia of the State of Maryland shall be deemed workmen of the State for wages within the meaning of the preceding sentence. Whenever and so long as by state law, city charter or municipal ordinance provision equal or better than that given under the terms of this article is made for municipal employees injured in the course of employment, such employees shall not be entitled to the benefits of this article.” But it is nevertheless necessary before the claimant can recover that it affirmatively appear that at the time decedent was injured he was a “workman employed for wages” by the appellee. -That he was not a “workman” in the usual and popular sense of that word seems to be plain -enough, because it is ordinarily used and understood as •designating one engaged in some form of manual labor, skilled or unskilled (Words and Phrases, 1st and 2nd Series; Webster’s Dictionary), and to extend its meaning go as to include the occupation of a policeman would be to give it an unnatural and strained construction, which could not be justified unless required by the context in which it is used, or to give effect to a clearly manifested intention.

It is true that in Todd v. Easton Furniture Company, 147 Md. 352 , it was held that the occupation of a watchman was. within the -terms of the act, but in that case the Court ¹⁷ was dealing not with section 35 of article 101, which refers to “workmen,” but with section 32, which deals with “employees,” and as the decedent referred to in that case was undoubtedly an employee, there was no question but that the act applied. The two words, “workman” and “employee” are often used interchangeably and as having the same meaning. In a sense, and as applied to certain cases, they do mean the same thing, although they are not synonymous and cannot properly be used interchangeably in all cases. A “workman” may or he may not be an “employee,” for he may be working as an independent contractor or for himself, and an “employee” may or he may not be a “workman,” for a physician, a lecturer, or a newspaper reporter may be employed to render services peculiar to their several vocations, but they are not “workmen” according to the usual and accepted meaning of the word.

Section 32 of article 101 of the C. P. G. L. of Md. extended the application of the statute to all “employees” engaged in extra-hazardous “employments” for private employers, so that whether the service rendered by Todd could properly be classified as “work,” there was no possible doubt that it was an “employment,” and for a private employer, and so within the express and literal language of the act. But in this case we are dealing with a section which imposed upon the State and certain governmental subdivisions thereof duties and obligations which would not have rested upon them at all but for that section (28 Cyc. 1257), in so far as those duties and obligations involved the exercise of their public governmental functions. We would not under those circumstances be justified in giving to the section a meaning broader than the lexical and usual significance of its language would convey, unless constrained to such a construction by the plain and obvious intent of the whole act. But we find no such intent.

There was obvious reason why the municipality, in respect to certain work, should be within the act, because as to work of a private character, or certain public work such as the construction and repair of high ¹⁸ ways, and other works of public- improvement, either by statute or the common law, they were under the same liability to their employees for their torts as private employers. In such cases both the municipality and its employees suffered from the same mischief which led to the passage of the act for'the benefit and relief of private persons and their employees. But that was not true in respect to agents employed by the State or subdivision thereof to perform functions- essentially public and governmental, because in such cases no such liability existed. And when the Legislature, in extending the scope of the act- to persons in the employ of the State and its several political- subdivisions, expressly limited its application to those cases in which “workmen were employed for wages,” it expressed no intent either in section 35 or the other sections of the act to have it apply to cases in which liability had never theretofore existed.

If it had intended to embrace such agents as policemen, and all other persons engaged in extra-hazardous employments for municipalities, it would certainly have expressed that intention in clearer language than that which we have quoted. That expression must have been intended in some way as a limitation, or it would not have been used. For if it had been intended that the extra-hazardous character of the work should be -the test of the application of the act, there was no reason why any agent engaged in any capacity in the performance of extra-hazardous work of any character for the city should have been excluded from its operation. And as municipal agents not included within the act are excluded from it, the apparent meaning of the expression “workmen employed for wages” is to exclude from it all such agents as are not, in the ordinary lexical meaning of the words, “workmen employed for wages.” But assuming as we must that decedent was employed exclusively as a policeman and that his duties were the same as a city policeman in the “park jurisdiction,” aside from that distinction the decedent whose injuries are the. basis of the claim in this case was more than a mere watch ¹⁹ man.; he was by the authority of the Legislature of the State .á conservator of the peace, empowered to make arrests, charged with the duty of enforcing the laws both of the City of Baltimore and the State of Maryland, of preserving the public peace, and of