136 A. 897 | Md. | 1927
The appellant in this case, whilst attending a camp of instruction at Virginia Beach, Virginia, where he had gone under orders of his superior officer, suffered a temporary total disability from injuries arising out of and in the course of his employment as a member of the Maryland National Guard.
Subsequently he filed a claim for compensation with the State Industrial Accident Commission, under chapter 332, Acts of 1924, and was awarded compensation at the rate of eight dollars per week. That award was reversed on appeal to the Baltimore City Court and from the judgment of that court reversing it, this appeal was taken.
The only question which it presents is what is meant by the phrase "average weekly wage" as used in article 101, Bagby's Code, when applied to cases arising under chapter 332, Acts of 1924. The facts material to that inquiry are these:
"Corbin H. Merrill was, at the time of his injury, a duly warranted corporal of the Maryland National Guard, and received the corporal's pay of $1.40 per day, for each day of his actual employment in the National Guard; he enlisted for a period of three years and his enlistment required him to obey the orders of his superior officers, including attendance at such drills, assemblies or encampments as might be ordered, and he actually attended forty-eight evening drills during the entire year prior to the accident, for which he received the per diem pay of $1.40 per evening.
On July 22d 1924, Corporal Merrill, with the Maryland National Guard and under orders of his superior officers, went to Virginia Beach to attend a camp of instruction for a period of fifteen days, during all of which time he was required to obey all orders of his superior officers, and for his obedience to these orders and the performance of the usual duties, he received $1.40 per day. He worked seven days per week during the encampment, so that the amount paid to Corporal Merrill by the Maryland National Guard *476 for the period he attended camp was at the rate of $9.80 per week."
The theory of the trial court was that Merrill's "average weekly wage" should be ascertained by taking the total amount actually paid to him for service as a member of the Maryland National Guard during the year next preceding the termination of the Virginia Beach encampment, and dividing that amount by fifty-two, and it granted a prayer establishing that rule as its guide in determining the compensation payable to the appellant, and that ruling is the subject of the only exception found in the record.
That construction of the phrase "average weekly wage," for which the State contends, seems to rest mainly upon the reasoning adopted by the courts of other states in considering the meaning to be given it when applied to the earnings of persons engaged in extra-hazardous occupations of a mechanical or industrial nature, whether such employment is regular, seasonal or intermittent, and in those cases it was determined largely by the language of the statutes under review. But the reasoning of the courts in those cases, and the conclusions reached by them, can be of little aid to us here, because of the difference in the language of the statutes under consideration in those cases and the language of the statute involved in this appeal.
It may be conceded that the machinery provided by article 101 to afford "relief for workmen engaged in extra-hazardous employments," chapter 800, Acts 1914, is ill adapted to effect the obvious purposes and intent of chapter 332 of the Acts of 1924. But we cannot suppose that the Legislature meant to do a wholly effectual and nugatory thing, nor that it meant to hold out to persons serving the State as members of its National Guard a false and illusory promise of relief from the consequences of injuries received in the course of that service. But if we accept the construction embodied in the appellee's granted prayer, we would necessarily hold that it did intend to do that very thing. It may be assumed that the organized state militia is composed of persons, *477 many of whom are engaged in various gainful occupations, who voluntarily give a part of their time to that particular public service. The service is of an extra-hazardous nature, Acts 1924, ch. 300, and the natural inference is that the Legislature by chapter 332 of the Acts of 1924, intended to hold out as an inducement to persons to enter that service some assurance that if they were injured in the course of it some relief would be afforded them. But that assurance would scarcely be met by allowing them, in the event of their being wholly disabled through injuries incurred in it, compensation based upon the rule adopted in the prayer under consideration.
Assuming that the act under consideration has some meaning, and that it was intended to accomplish some definite purpose, it becomes our duty to ascertain and give effect to that intent. For, as was said in Roland Park v. State,
Since the statute is remedial in character, and intended to provide relief in cases where none existed before, it may reasonably be assumed that its purpose was to afford substantial and not merely nominal relief, and we will therefore construe it with that purpose in mind.
Article 101, § 35, Bagby's Code, as amended by chapter 332, Acts of 1924, provides that "whenever the State * * * shall engage in any extra-hazardous work * * * in which workmen are employed for wages, this article shall be applicable thereto. In time of peace and while engaged in military service all officers and enlisted men of the organized militia of the State of Maryland shall be deemed workmen of the State for wages within the meaning of the preceding sentence." Section 36, sub-section 2, Ibid., provides: "In case of temporary total disability, sixty-six and two-thirds per centum of the average weekly wages shall be paid to the employee during the continuance thereof, but not to exceed a maximum of eight dollars per week, and not less than a minimum of eight dollars per week, unless the employee's established weekly wages are less than eight dollars per week at the time of the injury, in which event he shall receive compensation equal to his full wages." Section 65, sub-section 8,Ibid., provides that: "`Average weekly wages' for the purposes of this article shall be taken to mean the average weekly wages earned by an employee when working on full time."
It was said in Picanardi v. Emerson Hotel Company,
While neither the case last cited nor the reference toSchneider's work can be taken as strictly in point, they nevertheless illustrate the difficulty of adapting a statute to purposes *481 to which it was not originally intended to apply. But the Legislature, by the Act of 1924, clearly intended to afford some reasonably adequate relief to members of the National Guard injured in the course of their service, and since that intention can be effected in no other way, it must have intended to base the compensation payable to them either upon a theoretical week based upon their daily wage when in actual service, or upon the wages paid them during the only period in the year when they must serve "full time" for fifteen days continuously.
From what has been said it follows that in our opinion the trial court erred in granting appellees' prayer, and the judgment appealed from must be reversed.
Judgment reversed, and case remanded for a new trial.