State Ex Rel. Wilson v. North East Fire Brick Co.

Bond, C. J., delivered the opinion of the Court. The appellants, dependents of a workman whose death is alleged to have been caused by silicosis, after having had their claim under the Workmen’s Compensation Act, Code, 1924 Ed. and 1935 Supp., Art. 101, disallowed, have filed this suit at common law against the employer, with ³⁶⁹ an allegation of negligence on its part causing the fatal condition. The employer pleaded in bar its full compliance with the Act, and the plaintiffs filed a replication that the injury and death were not covered by the Act. The sufficiency of this replication was denied by demurrer, the demurrer was sustained, and from judgment on the demurrer for the defendant the plaintiffs have appealed.

The replication is, more specifically, that the husband and father of the plaintiffs died on November 17, 1937, and that on or about November 26, 1937, an application for payment of compensation by the employer, the North East Fire Brick Company, was made, and a hearing had on the question whether death was the result of an accidental injury arising out of and in the course of his employment within the provisions of the Maryland Workmen’s Compensation Act; that the State Industrial Accident Commission found and determined that it was not the result of an accidental injury arising out of and in the course of the employment within the provisions of the Act, and disallowed the claim. This final exclusion from the operation of the Act, it is argued, leaves unobstructed a right of action for damages at common law. And this is the contention to be tested on the demurrer. The negligence alleged is a failure of the employer to furnish the deceased with a reasonably proper and safe place to work, and to avoid exposing him to unnecessary danger while engaged in his work, with the result that silicosis brought on the death.

It is agreed that silicosis is an occupational disease. Sinsko v. Weiskettel & Sons Co., 163 Md. 614 , 163 A. 851 ; Marsh v. Industrial Accident Commission, 217 Cal. 338, 342 , 18 P. 2d. 933, 86 A. L. R. 563. And prior to the passage of the Act of 1939, Ch. 465, Secs. 32-A, 32-D and 32-E (Code, 1939, Art. 101, Sec. 34, Subsec. 33, and Secs. 37, 38), and at the time of the decedent’s death the results of occupational diseases were not compensated under the Workmen’s Compensation Act. Code, 1924 Ed. and 1935 Supp, Art. 101.

In the case of Vic ³⁷⁰ tory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 379 , 128 A. 635 , 44 A. L. R. 363, it was held that an act of negligence producing such a disease might render it accidental, and so compensable under the Act. But here disallowance of the claim by the Commission is taken by the plaintiffs to contradict that consequence, even though negligence is again alleged, and to support the argument that the plaintiffs are left to their remedy at common law. This court, concurring with the trial court, is of opinion that the law as it is settled in this State is opposed to that conclusion. The question was exhaustively argued and examined, with a review of all relevant authorities, in Victory Sparkler & Specialty Co. v. Francks, supra.

As stated in the brief of the appellee in that case, the principal contention was that the employee, “having contracted disease as a result of the negligence