Victory Sparkler & Specialty Co. v. Francks

Parke, J., delivered the opinion of the Court. The appeal is from a judgment of $22,500, recovered against the appellant for the benefit of .a young girl, who bad contracted phosphorous poisoning while employed in the making of fireworks for the appellant. The company’s pleas were to the effect (1) /that it was an employer engaged in an • extra-hazardous employment within the Maryland Workmen’s Compensation Act, and had secured compensation to its employees by insurance in conformity with the act in an author-, ized assurance carrier; and (2) that the girl was its servant at the time she sustained the injury complained of which arose out of and in the course of this employment; and (3) that the employer had fully complied with all the provisions of the act, and was ready and able to pay her the compensation to which she was entitled thereunder; 'and (4) that this liability for compensation was exclusive. There was a replication to the pleas containing this defence, that denied that the injuries /alleged in the declaration were accidental personal injuries, hut asserted that they “were the result of the gradual contraction of a disease known as ‘phosphorus poisoning,’ caused by the inhalation of fumes and gases wrongfully and negligently permitted and allowed by the defendant to be collected in the plaice in which the said plaintiff worked for said, defendant, .as alleged in the plaintiff’s declaration.” The appellant demurred to this replication, which was overruled ; and the case went to trial, and, after proof, a verdict was rendered agaiusit the appellant and judgment was extended in favor 'of the appellee.

The case is brought up on the demurrer, and the rulings of the lower court on the evidence and prayers are not before us. The demurrer presented the question involved in the ap*pnoved manner; and we do not consider that the Act of 1914, chapter 110, has any effect on the right of the appellant to ³⁷² have determined the correctness of the lower court’s action on the demurrer. The affirmance or reversal of the judgment is on the question of law raised by the demurrer. Prejudicial error on demurrer depends, as a rule, upon the then State of the pleadings, and not on what occurred later in the course of the trial.

After the ruling on the demurrer against the defendant it was necessary, as well as the established practice, to go to trial; to take proof and to have a verdict and judgment; and then the right of a review of the ruling on a demurrer cannot be denied. Emersonian Apartments v. Taylor (1918), 132 Md. 209 ; Kendrick & Roberts v. Warren Bros., 110 Md. 76 . The provisions of the Act of 1914,. chapter 110, apply to prayers, and require that if a prayer is to present a question of Variance between the pleadings and the evidence, it must state specifically the points wherein it is claimed such variance exists. The act furnished no sufficient basis for the appellee’s contention that, through the omission from the record of 'the 'testimony and of the prayers, and of the exceptions thereon, it does not affirmatively apt-pear that the appellee did not recover the judgment on an entirely different case from that set up iu the declaration; or that, if the appellee had so recovered, the appellant had raised the question of variance asi pointed out by the Act of 1914, chapter 110.

The important function of a demurrer is recogpized iu the Act of 1914, chapter 109, where it is provided that uo question of the sufficiency of the pleadings as stating a cause of action as a defence, which might have been raised by demurrer, shall be raised by prayer or instruction at the trial. The Court .must assume that the trial below proceeded in harmony with the pleadings, and that the proof admitted conformed to 'them, in ’the absence of anything in the record to the contrary. Stuch an assumption is a practical necessity and is founded on an obviously s'ound principle of procedure. Furthermore, as the decisive question was determined on the pleadings, the incorporation of the proof and the prayers would have made au unjustifiable iucrease of the cost of the record. ³⁷³ The appellant was engaged in an extra-hazardous employment, and was not in default under1 any of the requirements of the Workmen’s Compensation Aefc; and the girl was in his service when she gradually 'Contracted, through her employer’s negligence, phosphorus poisoning in the course of and arising out of her employment.

The pleadings raised these two1 legal questions: Was the employer liable at common law to the servant, if ’her injury was not compensable under tbe terms of the Workmen’s Compensation Act? and, Was not the disease of phosphorus poisoning an injury outside of the purview of the .act ? The lower court answered both these inquiries in the affirmative,- and they are here renewed for .a final determination. 1. The Act of 1914, chapter 800, has a preamble reciting that the then subsisting law with respect to injuries sustained by Workmen in the course of their employment was inadequate, unsatisfactory, and uneconomic from the standpoint of the best interest of the workmen, the employer and the State, and these introductory recitals were followed by this sequent paragraph: “Row, therefore, the State of Maryland, exercising herein its police, and sovereign power, declares that all phases of extra-hazardous employments be, and they are hereby withdrawn from private controversy, and sure and certain relief for workmen injured in extra-hazardous employments and their families and dependents are hereby provided for, regardless of questions of fault, and to the exclusion of every other remedy, except as provided in this Act.” The quoted paragraph has the solemnity, sanctions and form of a statutory enactment, with the exception of a 'Compliance with the provisions of -tbe Constitution of the State providing 'that “The style of all laws of this 'State shall be, Be it enacted by the General Assembly of Maryland.” Art. 3, see. 29; McPherson v. Leonard, 29 Md. 377, 386-389 ; Prince George's County v. B. & O. R. R. Co., 113 Md. 179, 182, 183 ; Williams v. Broening, 135 Md. 232 . While it is not the Court’s purpose to hold th'at this paragraph is a part ³⁷⁴ of the body of the statute, yet the Legislature could not have gone much further in stressing its intention to make the terms of the law exclusive within its indicated scope1.

Furthermore, .this preliminary declaration is, in substance, incorporated in the text of the act. Northern Pac. R. R. Co. v. Meese, 239 U. S. 614 . See section 6604-1 of Washington Act, at p. 937 of U. S. Bulletin (1921), Workmen’s Compensation Legislation.

In section 14 of the act, it is provided that “every employer subject to the provisions of this act shall pay or pro»vide as required herein compensation according to the Schedule of this act for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury, except when the injury is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results from the intoxication of the injured employee while on duty.” In respect to the liability imposed by the provisions last quoted, the same section declares: “The liability prescribed by the last preceding paragraph shall be exclusive, except that if an employer fail to secure the payment of compensation for his injured employees and their dependents as pro-, vided in this Act, 'an injured employee or his legal representative in case death results from the injury, may, at his option, elect to claim compensation under this Act, or to> maintain an action in the courts for damages on account of such injury; and in such an action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow-servant or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.” See sections 57, 59. And later on, when the act prescribes the compensation for the workman or his family or dependents,, section 36 explicitly sets forth: ³⁷⁵ “Each employee ('or in ease of death his family or de>pendents) entitled to receive compensation tinder this article shall receive 'the same in accordance with the- following schedule and except as in this article otherwise provided, such payment shall be in lien of any and all rights of action whatsoever against any person whatsoever.” The use of the word “payment” for this sentence has no other significance than that it wate demanded to make this provision of section 36 consistent with, that one of section 14, providing for an election by the employee or his representatives of compensation under the act or of the eomm'on law action for damages, without the defence of the negligence of a fellow servant, the employee*s assumption of risk, or his contributory negligence, if the employer had failed to secure the payment of the compensation by one of the three methods of insurance prescribed by section 15. When these various sections axe considered together, in connection with the preliminary paragraphs of the act, the meaning is soi clear and unmistakable that it would be a denial of the legislative purpose to' strike their plain terms from the statute by judicial construction. An exact parallel in facts with this case is not found in the reported decisions of this tribunal, but whenever this Court has spoken on any phase of this subject, it has uniformly said that,-aside from the exceptions created by the act itself, the operation of the law is exclusive of all other remedy .and liability, with respect to both the employer and employee, engaged in hazardous employments, in regard1 to all injury arising out of and in the course of the employment.

Jirout v. Gebelein, 142 Md. 692, 697-699 ; Solvuca v. Ryan & Reilly Co., 131 Md. 265, 269 , 129 Md. 235, 238 ; Hagerstown v. Schreiner, 135 Md. 650, 653, 654 ; Adleman v. Ocean Accident & Guarantee Co., 130 Md. 572, 574 ; Northern Pac. R. R. Co. v. Meese, 239 U. S. 614, 618 ; Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 476, 477 ; Raymond v. Railway Co., 243 U. S. 43, 45 ; Peet v. Mills, 76 Wash. 437 ; Zajachuck v. Willard Storage Battery Co., 106 Ohio St. 538 ; Industrial Commission v. Brown, 92 Ohio St. 309 . ³⁷⁶ The decisions, in B. & O. R. R. Co. v. Branson, 128 Md. 678 , and in the same case in 131 Md. 686 , were both before the passage of the Maryland .act, and the reference to the right of the injured party to proceed at common law, if he were not within the scope of the Federal Employer’s Liability Act, was made in connection with that act, which had none of the provisions of the present State law on the point now being determined. The case at bar is not within any of the exceptions specified by the act. The appellant had fulfilled all its obligations under the act, and it was engaged in an extra-hazardous oeeupation. .The girl was its employee, who- had sustained an injury arising out of and' in the course of this employment and her sole remedy was under the terms o-f the Workmen’s Compensation Law.

She accepted this situation a-s a statutory term of her employment when she became the servant of the appellant. It has been .argiued with ability and skill that the Workmen’s Compensation Act is restricted in its operation t-o> that distinct -and separate -class of injuries arising from accidents, and that .with respect to all other injuries from any other cause the common law remedies, exist in full vigor and efficacy against the employer. This theory of the statute is at once confronted by the salient purp-o-se o-f the act, to put-an end to private controversy and to- litigation. It splits apart the field of negligence in hazardous employments, and malees futile the law’s pronouncement that it is the exclusive remedy for every phase of extra-hazardous employment, except asi by its own, terms specified.

The contention doe-s not meet the provisions of section 14, which first impose the employers’ obligation to play compensation, and then affirm that this liability of the employer “shall be exclusive,” i. e., exclusive of all other liability as an employer, to- his émplo-yee, save as by the act indicated. In other words, the statute has given to labor what it never had before, and has ' taken from capital what it had always enjoyed, and has compensated the latter by limiting its liability, while -engaged in hazardous employment, and conforming to the act, to the pay ³⁷⁷ ment of compensation only to those who sustain an injury, arising out of and in the course of their employment, that is compensable under the act. ■The statutory definition of injury, which was made compensable without reference to neglect of employer or fault of worker, except when the injury was self-inflicted or the sole result of the intoxication of the employee, and the abolition of the fellow-servant rule, of the defences of contributory negligence and assumption of risk, and the substitution of a regulated and certain compensation for damages, contribute convincingly to the conclusion that the legislative intent was to include within the act not only the newly created class of compensable injuries, but also every injury which could be suffered by any worker in the course and .arising out of the employment, for which there was then a subsisting right of action. Baggott Company v. Industrial Commission, 290 Ill. 530 . With this conception of the purpose and effect of the act, the Legislature Was consistent in making the prescribed liability of the employer' and remedy of the employee exclusive with respect to all injuries sustained in the hazardous employment.

It is true that the question here has never been decided by this 'Court, yet the former opinions were on Cognate matters and the view stated, while not controlling, is at least suggestive ;