53 A.2d 30 | Md. | 1947
This appeal is from a judgment of the Circuit Court for Dorchester County, affirming a decision of the State Industrial Accident Commission awarding compensation to the widow and dependent minor children of a deceased employee under the Workmen's Compensation Act. Code, 1939, Art. 101, § 1 etseq. The decedent, Otho Miles, was killed when a truck driven by his employer, in which he was a passenger, was struck by a railroad train on February 5, 1945. It is conceded that his death arose out of and in the course of his employment. On June 27, 1945, an action at law was instituted on behalf of the widow and children against the railroad company. On February 4, 1946, while that action was pending, claim was filed for death benefits under the Compensation Act. Thereafter, upon petition of the defendant in the action at law, the insurer was made a party plaintiff in that action. At the hearing before the Commission on the claim for compensation, in August, 1946, the employer and insurer raised the point that, by filing the action at law, the claimants had made a binding election to sue the third party tortfeasor, barring the claim for compensation. On August 20, 1946, the Commission allowed the claim, and the award was affirmed on appeal to the Circuit Court.
The appellants argue that this Court decided in Hagerstown v.Schreiner,
In the Schreiner case, the precise holding was that after an award of compensation the dependents of a deceased employee could not proceed against a negligent third party. In reaching that conclusion the Court relied not only upon the language of section 59 (then section 58) that the employee, or his dependents, might "proceed either by law against that other person to recover damages or against the employer for compensation under this Article," but also upon the language of section 35 (then section 36) that "except as in this Article otherwise provided, such payment [of compensation] shall be in lieu of any and all rights of action whatsoever against any person whomsoever." Thus the actual holding was narrower than some of the language of the opinion would indicate. Without changing the provisions quoted, the Legislature, after the decision in the Schreiner case, provided that an injured employee, or his dependents in case of death, might proceed against a negligent third party if the employer or insurer did not commence an action within two months from an award. In Stark v. Gripp, *459
In Clough Malloy v. Shilling,
In none of these cases was a situation presented where the action was instituted prior to the award of compensation. But in the recent case of Perdue v. Brittingham,
In the instant case, the institution of suit by the dependents did not prejudice the insurer's right, but on the contrary, preserved it. If suit had not been filed within the year the right to sue the negligent third party would have been barred by limitations; the claim for compensation was not filed until the last day of that year. Compare Greenwald, Inc., v. Powdermaker,
Under such circumstances, and in the absence of any showing of prejudice, there is no reason to construe the option as an absolute bar. The purpose of the statute is fully gratified so long as the employer or insurer is afforded an opportunity to intervene and control the conduct of the action, to the same extent as if they had instituted it, and obtain reimbursement out of any recovery. In the instant case it appears that the suit has not come to trial and that the insurer has become a party to it. *461
As pointed out in the Perdue case, this view finds support in the language of section 59, which omits the words "but not against both," used in some of the other Compensation Acts, and in the fact that since the Maryland statute was amended it does permit, in the situation presented in the Schreiner case, proceedings against both the employer and the negligent third party. It also finds support in the reasoning of decisions in other courts, despite the variations in statutory language. SeeMcKenzie v. Missouri Stables, Inc., 225 Mo. App. 64,
Judgment affirmed, with costs.