Perdue v. Brittingham

Markell, J., delivered the opinion of the court. This is an appeal by the employer and the insurer (appellants) in a workman’s compensation case. The claimant (appellee) is the widow of the employee, George Robert Brittingham, who was killed on October 23, 1943. The commission’s order, affirmed in the lower court, awards the claimant compensation “for the use and benefit of her infant daughter.” The employer carried on business as W. F. Perdue Trucking Company.

He operated several trucks. The employee had been employed by him as a truck driver about four months. The employer, the employee and his wife and parents all lived in Wicomico County, east of Salisbury. The employee was married on July 24, 1943.

He left a posthumous daughter, born June 3, 1944. He and his wife lived with his parents. She says that at the time he was killed they were not “living together,” but she thinks he would have come back; they first “separated” about three or four weeks after they were married; the cause of their separation was a quarrel; she objected to his drinking; she continued to live with her mother-in-law; she does not know where he was staying; he would come back frequently; they would get into a quarrel, and he would leave. His mother says “he would come home from work, he was tired, and they would fuss * * * like young folks do.” ³⁹⁶ On the evening of October 21, 1943, two of the employer’s trucks set out on trips to Philadelphia and back, one driven by the decedent, the other by a driver named Dunham.

The employer says “they went along more or less together, but they didn’t have to do that.” Decedent was hauling “general produce” going up and empty egg cases coming back. Dunham for his return trip had a load of oats for Georgetown, Delaware. The main highway from Salisbury to Wilmington was U. S. Route 13, through Dover (but not through Georgetown). The route from Dover through Georgetown to Salisbury is less direct than Route 13.

The time-clock in decendent’s truck indicated that the trip to Philadelphia was begun about 7.15 P. M. (Dunham says eight or nine o’clock) on October 21st and ended at Philadelphia about 3.30 A. M. on the 22d. On the 22d. decedent and Dunham unloaded their trucks and got their return loads at Philadelphia, and that afternoon started on the return trip. The return route, as far as decendent went, was the same as the route going, viz., Route 13.

Dun-ham returned from Dover through Georgetown. The employer says decedent had made several trips to Philadelphia over this route before for him. He thinks decedent knew this road pretty well. • Dunham says they stopped at Wilmington in a restaurant, about 7 or 7.30 on the evening of the 22d., and got something to eat and started on down. At the restaurant decedent “got a beer” while they were having “lunch”; he also “got a beer” on Front Street- while Dunham was with him.

Apparently just before they came into Wilmington “on the back road,”- decedent saw that Dunham had a flat tire; they stopped to examine it. They “pulled on down to the next service station and pumped it up.” Apparently the service station was south of Wilmington. Dunham thinks they stayed about 45 minutes at the service station and left between 8.00 and 8.30. The time-clock on decedent’s truck indicated a stop from 7.05 to 9.05, apparently including the stop at the service station and the “lunch” at the restaurant.

Dunham says decedent ³⁹⁷ was supposed to follow him and help him unload at Georgetown; they had such an understanding. He never saw decedent again. The time-clock indicated that decedent’s truck had stopped from 9.20 to 9.30 and finally at 9.40. Between 10 and 11 o’clock that evening a Delaware State Police Station received a message, presumably by telephone, that there was a man lying alongside a truck, south of Odessa, on the shoulder of the southbound lane of Route 13.

Route 13 is a dual highway, separated by a grass plot. The southbound lane itself, approximately 22 feet wide, is in effect two concrete lanes. Odessa is about 25 miles south of Wilmington. This message was investigated by Trooper Callahan, who between 11.00 and 11.15 found the truck, but could not locate the driver.

The truck proved to be decedent’s truck. It was about a mile and a half south of Odessa. There was a blanket lying alongside the truck; it was picked up and put in the cab of the truck. There was then an unopened case of beer in the cab.

Dunham says decedent did not purchase a case of beer along the road coming down from Philadelphia while Dunham was with him. The truck was parked on the shoulder about ten or fifteen feet off the road. Callahan says the lights of the truck were off (or “dimmed” [?]; “we turned them on.” About 1.15 A. M., on- October 23d. Harold Allen of Smyrna, Delaware, who worked in Wilmington, was going home, driving his car south on the southbound lane of Route 13.

He had several persons with him. He had reached a point about 1.7 miles south of Wilmington— about ten miles north of Smyrna. As he approached he could see something standing in the road—which proved to be Brittingham. “I could not quite make out what it was at first and I looked close over the steering wheel to make out what it was. Of course, I was riding the center of the roadway, [i. e. of the 22 feet southbound lane] and he was standing on the white line in the center of the road with his back to me as I was going south and it looked to me as if he wanted to be hit, with his hands in ³⁹⁸ front of him and his head down and was not moving.

I was pretty close on him before I really knew it was a man.” Allen noticed another car running “pretty close in back of me.” Allen “cut off to the right of the road on the shoulder and shot around” Brittingham. He had a feeling that the car .behind was going to hit Brittingham. Brittingham had not moved even when Allen cut around him. Allen cut across the green and came back to the spot where Brittingham had been standing.

The other car had hit him and kept going. When Allen got back there Brittingham had been hit and knocked down “between the center of the dual highway over on the green.” He was dead. When Allen first saw him, Brittingham was standing still, not walking, in the middle of the road. Allen thinks “we told a colored fellow,”- in a car that had stopped, to call an officer and he went to a place called Royal Oak and did so.

The officers arrived about 1.30 A. M. They put a radio message through for the hit-and-run car. The car with its occupants, the owner and the driver, father and son, named Clark, was picked up at Dover, about fifteen miles from the accident. The place where the truck was parked was about a quarter of a mile north of where Brittingham was killed. Callahan says the truck lights were still on; Allen' says they were not.

Some hours later, when the employer arrived, the battery was dead. Nothing else was found wrong with the car. The garage nearest the parked truck was at Odessa, about a mile and a half north, probably the only one open at ten o’clock except in Smyrna. The nearest place for liquor or beer was Pleasant Hill Inn, close by where the truck was parked.

There is no direct evidence that Brittingham did or did not go to any garage or to any drinking place, or that he was or was not ill or intoxicated, after the truck came to a stop. Before the claimant filed her claim for compensation, she had instituted two separate suits in Delaware, against the Clarks, under the Delaware Lord Campbell’s Act. At the hearing before the commission the employer set up ³⁹⁹ these suits as an election of remedies which barred any claim for compensation. The claimant offered to assign her interest in the suits to the employer.

The employer declined the offer. After notice to the commission, claimant discontinued the suits, before the commission made its order awarding compensation. It is not contended, and there is no evidence, that the employer was actually prejudiced by the institution of these suits,. The employer still contends that institution of the suits was an election of remedies which bars any claim for compensation.

Ordinarily it is deemed fundamental that the same person should not pay twice for the same loss, e. g., workmen’s compensation and tort liability. Codley v. John Mowlen & Co., Ltd., [1914] 2 K. B. 61. Less fundamental and more narrowly applicable is the doctrine that the same person should not collect twice for the same loss. Hagerstown v. Schreiner, 135 Md. 650 , 109 A. 464 .

Still more narrowly applicable are the cases holding that mere institution of a legal proceeding is such a decisive election as bars any other remedy. Sciacia’s Case, 1928, 262 Mass. 531 , 160 N. E. 310 ; Tocci’s Case, 269 Mass. 221 , 168 N. E. 744 ; Graham v. Michigan Motor Freight Lines, 1943, 304 Mich. 136 , 7 N. W. 2d. 246; Nichols v. Ford Motor Car Co., 306 Mich. 268 , 10 N. W. 2d. 852. Cf. Chapman v. Hoage, 1936, 296 U. S. 526 , 80 L. Ed. 370 .

In any case any of these doctrines may be made applicable or inapplicable by pertinent statutory provisions. Section 59 * of Article 101 of the Code provides that where injury or death was caused under circumstances creating a legal liability in some person other than the employer, the employee or his dependents “may proceed either by law against that other person to recover damages or against the employer for compensation”; and if compensation is paid the employer may enforce for his benefit the liability of such other person, any excess of damages recovered over compensation paid (and expenses and costs) to be paid to the employee or his dependents. In Hagerstown v. Schreiner, supra, it was held that after ⁴⁰⁰ accepting compensation, dependents could not maintain suit against a third person for damages. The court quoted the provision of section 36 (now 35) that payment of compensation “shall be in lieu of any and all rights of action whatsoever against any person whomsoever.” ■ [ 135 Md. 650 , 109 A. 465 .] The court said: “We think the plain meaning of section 58 [now 59], so far as concerns the question here involved, is this: If the injury or death has been caused under such circumstances as to fix a legal liability upon some person or persons, other than the employer, the employee, or, in case of his death, his personal representatives or dependents, may elect to sue such other person or persons at law, or may claim compensation under the act, but he or they cannot pursue both remedies.

If he or they accept compensation under the act, such payment must be held as declared by section 36, article 101, to be ‘in lieu of any and all rights of action whatsoever against any person whomsoever’.” ' Hagerstown v. Schreiner was decided January 16, 1920. By Chapter 456 of Acts of 1920 Section 58 was amended by adding the provision that if an employer shall not within two months start proceedings to enforce the liability of the third person, the employee or his dependents may do so for the benefit of the employer and themselves. Under Vermont and Louisiana statutes substantially similar to the Maryland Act it has been held by the Second Circuit Court of Appeals that after compensation has been awarded but not paid the employee or his dependents may maintain suit against a third person (Canadian Pacific Railroad Co. v. Morin, 1931, 54 F. 2d. 246), and by the Supreme Court of Louisiana that after award and payment of compensation suit may be maintained by the employee but credit must be allowed for compensation repayable to the employer. Lowe v. Morgan’s Louisiana & T. R. and S. S. Co., 150 La. 29 , 90