Johnson v. Miles

Henderson, J., delivered the opinion of the Court. This appeal is from a judgment of the Circuit Court for Dorchester County, affirming a decision of the State Industrial Accident Commission awarding compensation to the widow and dependent minor children of a deceased employee under the Workmen’s Compensation Act. Code, 1939, Art. 101, sec. 1 et seq. The decedent, Otho Miles, was killed when a truck driven by his employer, in which he was a passenger, was struck by a railroad train on February 5, 1945.

It is conceded that his death arose out of and in the course of his employment. On June 27, 1945, an action at law was instituted on behalf of the widow and children against the railroad company. On February 4, 1946, while that action was pending, claim was filed for death benefits under the Compensation Act. Thereafter, upon petition of the defendant in the action at law, the insurer was made a party plaintiff in that action.

At the hearing before the Commission on the claim for compensation, in August, 1946, the employer and insurer raised the point that, by filing the action at law, the claimants had made a binding election to sue the third party tortfeasor, barring the claim for compensation. On August 20, 1946, the- Commission allowed the claim, and the award was affirmed on appeal to the Circuit Court. The appellants argue that this Court decided in Hagerstown v. Schreiner, 135 Md. 650 , 109 A. 464 , that an injured employee, or his dependents in case of death, has an option under Section 59 of Art. 101 of the Code (then sec. 58) to proceed against his employer for com ⁴⁵⁸ pensation under the Act or against a negligent third party at law, but only against one or the other. They contend that the doctrine of election of remedy is implicit in the Act, and was not altered, except to the extent indicated, by the amendments of 1920 and 1922, which allow an employee or his dependents, after an award of compensation, to proceed against a negligent third party if the employer or insurer fails to do so within two months from the date of the award.

While they concede that this court held, in the recent case of Perdue v. Brittingham, 186 Md. 393 , 47 A. 2d 491 , that the institution" of an action at law by the dependents of a deceased employee does not operate as an election, where it is dismissed prior to an award of compensation, they contend that the/ case is distinguishable, and that unless the action at law is discontinued, the doctrine of election should apply. These contentions are not without force, but we take a different view. In the Schreiner case, the precise holding was that after an award of compensation the dependents of a deceased employee could not proceed against a negligent third party. In reaching that conclusion the Court relied not only upon the language of section 59 (then section 58) that the employee, or his dependents, might “proceed either by law against that other person to recover damages or against the employer for compensation under this Article,” but also upon the language of section 35 (then section 36) that “except as in this Article otherwise provided, such payment [of compensation] shall be in lieu of any and all rights of action whatsoever against any person whomsoever.” Thus the actual holding was narrower than some of the language of the opinion would indicate.

Without changing the provisions quoted, the Legislature, after the decision in the Schreiner case, provided that an injured employee, or his dependents in case of death, might proceed against a negligent third party if the employer or insurer did not commence an action within two months from an award. In Stark v. Gripp, 150 ⁴⁵⁹ Md. 655, 133 A. 338 , it was held that the negligent third party had no such interest in the protection of the insurer’s right to reimbursement, as to insist upon an apportionment of the judgment. And in a later case, it was held that after the lapse of two months, the employer or insurer still had a concurrent right to pursue the action. State v. Francis, 151 Md. 147, 152 , 134 A. 26, 28 .

It was there stated: “The prosecution of simultaneous suits by the two classes of parties indicated, after the lapse of the two months’ period, for the enforcement of the same liability, is a contingency which has been suggested and considered. The practical difficulties resulting from such a duplication of suits might be reduced by consolidation, and in no event could there be more