Mayor of Hagerstown v. Schreiner

⁶⁵¹ Burke, J., delivered the opinion of the Court. The appeal in this case presents for determination the true construction of Section 57 of the Acts of 1914-, Chapter 800, known a,s the Workmen’s Compensation Act. That section is codified as S'ection 58 of Article 101 of the Code, and is .as follows: “Where the injury or death for which compensation is payable under this Article was caused under circumstances creating a legal liability in some person, other than the employer, to pay damages in respect thereof, the employee or, in case of death, his personal representative or dependents as hereinbefore defined, may proceed either by law against that other person to recover damages or against the employer for compensation under this Article, or in case of joint tort feasors against both; and if compensation is claimed and awarded or paid under this Article any employer may enforce for the benefit of the insurance company or association carrying the risk or the State Accident Eund, or himself, as the case may be, the liability of such other person; provided, however, if damages are recovered in excess of the compensation already paid or awarded to be paid under this Article, then any such excess shall be paid to the injured employee or, in case of death, to his dependents, less the employer’s expenses and costs of action.” The question arose in this way. On the 24th of April, 1918,‘Clarence Ml.

Schreiner, an employee of the Cumberland Valley Telephone O’ompany, died as the result of an accidental injury arising out of and in the course of his employment by that company. He loft surviving him a widow, Florence Schreiner, and two minor children. The widow and children were dependent upon him for support. On the tenth, of August, 1918, Mrs. Schreiner, the widow, on behalf of herself and the children filed a claim under the Act with the State Industrial Accident Commission for compensation ⁶⁵² as dependents and on the 21st of September, 1918, the Oommision, “ordered that compensation at the rate of $8.08 per week, payable weekly, be paid to the said Florence Schreiner by Cumberland Talley Telephone Company, employer, and Aetna Life Insurance Company, insurer, for the period of eight years, from the 24th day of April, 1918, not to exceed, however, the aggregate amount as provided in Section 35 of Chapter 800, Acts of the General Assembly of Maryland of 1914, and such further sum not to exceed $75.00 as the said claimant may have paid or obligated herself to pay on account of the funeral expenses incurred by reason of the death of the said Clarence Schreiner, and that final settlement receipt he filed with the Commission in due time,, and it is also hereby ordered and directed that the said Florence Schreiner apply said compensation to the use of herself and her children in such proportion as under the circumstances may seem to her best.” Thereafter, to wit, on'December 31, 1918, the widow and. children of the deceased brought suit against the Mayor and City Council of Hagerstown, a municipal corporation, to recover damages for the death of Clarence M. ’Schreiner upon the ground that the death of the husband and father was caused by tbe joint negligence of the defendant and the-Cumberland Talley Telephone Company, his employer.

The ease was removed to the Circuit Court for Carroll County. The trial in that Court resulted in a verdict and judgment, for the plaintiffs, and this is the defendants’ appeal from that judgment. The defendant pleaded the general issue and three special pleas in bar. The second and third pleas set out the application, of Mrs-.

Schreiner to- the State Industrial Accident Commission and the award of the- Commission allowing compensation. The plaintiffs demurred to- the special pleas and the Court sustained the demurrer. Dfiring the-progress of the trial the defendant offered to show the appli ⁶⁵³ cation of Mrs. Schreiner to the State1 Industrial Accident Commission for Compensation and the award of the Commission as herein above transcribed. Upon objection by the plaintiffs the Court refused to permit, the introduction of these facts* and this ruling constitutes the second bill of exceptions.

The question is as to whether the plaintiffs, under the section of the article quoted, (and that is the only pro>vision of law upon which they rely) can maintain this suit. An employer, who is subject to the provisions of the workmen’s compensation law and who has provided the insurance directed by Section 15 of Article 101 of the Code to