Mech v. Storrs

Shehan, J., delivered the opinion of the court. ' Lucius S. Storrs and William H. Meese, receivers for the United Railways & Electric Company of Baltimore, a body corporate, appellees, on the 20th day of December, 1984, recovered a judgment in the Superior Court of Baltimore City for $5,000 against George P. Mech and the Metal Package Company, a corporation of the State of Delaware, appellants. From that judgment this appeal is taken. The United Railways & Electric Company of Baltimore was the employer of William P. Frazier, and was self-insurer of the risk assumed in that employment. This, employee was engaged in a hazardous occupation, as a laborer in the repair gang of said company, and in the course of his employment, while engaged in repairing the tracks of the company, he was killed through the negligent operation of an automobile belonging to the Metal Package Company, and driven by George P. Mech, its alleged agent. ¹⁵² This is the second appeal that has been taken in this case, and most of the questions raised herein were presented to and considered at length by this court in the former appeal.

Storrs v. Mech, 166 Md. 124 , 170 A. 743 . There are three questions presented for our consideration in this appeal: First. Was George P. Mech, at the time of the accident, an agent or employee of the Metal Package Company, acting within his employment, so as to render the appellant the Metal Package Company liable for his negligence, which caused the death of William P. Frazier? Second.

Was Susie V. Frazier, the sister of the deceased, such a dependent as to entitle her to compensation under the Workmen’s Compensation Law, and was there sufficient evidence to show the extent of such de-pendency, and because of the provisions of that law (article 101, secs. 36 and 58) was she entitled to sue under Lord Campbell’s Act, as extended by these provisions (Code, art. 67, sec. 1 [repealed and re-enacted by Laws 1929, ch. 570, sec. 3] and section 2), for the death of her brother, caused by the negligence of George P. Mech? Third. Whether the plaintiff’s right of recovery is limited to the amount of the compensation for which if was made liable to its deceased employee’s dependent sister by the award of the State Industrial Accident Commission upon the claim of the decedent’s sister for compensation for his death at the hands of George P. Mech while decedent was at his customary work for his employer; in other words, Does this award of the State Industrial Accident Commission constitute the entire measure of the damages that the appellees are entitled to recover? These are the several questions here presented for consideration, and they will be examined and disposed of in their order, first briefly reviewing the facts, which are neither difficult nor conflicting.

About 1 o’clock p. m. on February 29th, 1932, several employees of the United Railways & Electric Company, including William P. Frazier, the deceased, were engaged in repairing tracks ¹⁵³ on Eastern Avenue in the City of Baltimore, when an automobile owned by the Metal Package Company and operated by George P. Mech, the traffic manager and agent of the Metal Package Company, one of the appellees, came down Eastern Avenue and struck Frazier, who at that time was engaged in his work. The collision caused injuries from which William P. Frazier died shortly thereafter. On that day George P. Mech had left the plant where he was employed in order to transact certain business for the Metal Package Company. On his way back to the factory, it being more convenient, and in order to save time, which benefited his employer, he stopped at his house for lunch.

After leaving there, and while proceeding in the company’s automobile to his place of business, this accident occurred. Under this statement of facts there can be no doubt that George P. Mech was the agent of the Metal Package Company, acting for it, within the scope of his employment. The mere fact that on his way from a place to which he had gone on business for his employer, in order to save time, he stopped at his home for lunch, because it was more convenient to do so, and from there was proceeding to his place of business, would not take him out of his employment by the Metal Package Company at the time of the accident. He was clearly its agent, and the company is liable for his negligence and the consequences thereof.

This question of agency was presented by the defendants’ A and B prayers. The court refused to grant either of them, and was correct in so doing. This question is not seriously urged either in the argument or in the brief of the appellants; therefore, it requires no further consideration, except the citations here given: Salowitch v. Kres, 147 Md. 23 , 127 A. 643 ; Jordan Stabler Co. v. Tankersly, 146 Md. 454 , 126 A. 65 ; Louis v. Johnson, 146 Md. 115 , 125 A. 895 ; Myers v. Shipley, 140 Md. 380 , 116 A. 645 ; Whitelock v. Dennis, 139 Md. 557, 566 , 116 A. 68 ; Dearholt Motor Sales Co. v. Merritt, 133 Md. 323 , 105 A. 316 ; Stewart Taxi-Service ¹⁵⁴ Co. v. Merritt, 127 Md. 70 , 95 A. 1057 ; Vonderhorst Brewing Co. v. Amrhine, 98 Md. 406 , 56 A. 833 . The question of dependency of Susie V. Frazier, the extent thereof, and the sufficiency of the evidence to prove with a fair degree of certainty the loss sustained by her on account of her brother’s death, we will now consider.

At the time of the death of William P. Frazier, he was forty-eight years of age, unmarried, in good health, and had been employed by the Railways Company for about twenty-five years. At that time he and his sister, Susie V. Frazier, who was forty-four years of age and unmarried, were living together in a house owned by her. He supplied the funds with which to run the house. His sister did the housework, and had no other employment.

He regularly brought home his earnings, gave the money to her, and she purchased the supplies for the household and other necessities and requirements, and the balance was deposited by her in bank to their joint account. He had no other dependents, and she had no other support. His average weekly earnings at the time of the accident were $19.48, and their joint expectancy of life was 17.4 years. Before the death of her brother, she had no employment other than that above described, and since his death she has only done a little dressmaking.

As a dependent of her brother, she has received compensation from the company (self-insurer) at the rate of $12.99 a week, as awarded by the State Industrial Accident Commission. In answering the questions here presented, a brief review of the statutes bearing upon this subject should be here given. It will not be necessary to set them forth at length, because they have been carefully reviewed in the former appeal in this case. In article 67, under the title “Negligence Causing Death,” section 1 (repealed and re-enacted by Laws 1929, ch. 570, sec. 3) describes the circumstances under which the right of action accrues, and in section 2 those persons entitled to sue are limited to wife, husband, parent, and child of the deceased.

In ¹⁵⁵ article 101, sec. 58 (Workmen’s Compensation Law), a tort-feasor other .than the employer is held responsible in case of death to the personal representatives or dependents therein defined. Article 101, sec 36, provides that the wife or invalid husband, the child, or children under the age of sixteen years, etc., are presumed to be wholly dependent upon the deceased and in all other cases the question of dependency, in whole or in part, is determined by the facts in the particular case existing at the time of the injury resulting in death of the employee, but no person shall be considered a dependent unless such person be father, mother, grandfather, grandmother, stepchild, or grandchild, or brother or sister of the deceased employee, including those otherwise specified in the act. It is clear, and has been so stated, that “under these provisions it is abundantly evident that a sister is not such a person as is presumed to be dependent, but she is obligated to prove the fact of dependency. When