
    E. H. KOESTER BAKERY et al. vs. PAUL IHRIE.
    
      Workmen’s Compensation Act — Who Entitled to Benefit— Receipt of Salary.
    
    The provision of the Workmen’s Compensation Act that it shall not apply to any employee whose “salary” is in excess of two thousand dollars a year does not exclude from its benefits one employed as a driver at an average weekly wage of forty dollars. pp. 222-225
    That the Legislature meant the word “wage,” as used in one section of the act, to include the word “salary” does not show that it meant the word “salary,” as used in other sections, to include the word “wage.” p. 223
    
      Decided January 15th, 1925.
    
    Appeal from the B'aitimore 'City Court (Dueey, J.).
    Claim by Paul Ihrie against the E. H. Koester Bakery, employer, and the Casualty Reciprocal Exchange, insurer, under the Workmen’s Compensation Act. Prom a judgment in favor of the claimant, the employer and insurer appeal.
    Affirmed.
    The cause was argued before Hknek., AnKirrs, Ofeutt, Digges, Bonn, and Parke, JJ.
    
      George W. Lindsay, with whom were Sauerwein, Lindsay & Donoho on the brief, for the appellants.
    
      Harold Tschudi, with whom were William D. Macmillan and James U. Dennis on the brief, for the appellee.
   Adkins, J.,

delivered the opinion of the Court.

Paul Ihrie, the appellee, an employee of the E. If. Koester' Bakery, one of the appellants, was seriously injured while engaged in the course of his employment, in a collision between a bread truck which he was driving and a fire engine. He duly filed his claim for compensation with the State Industrial Accident 'Commission, which, on February 18th, 1922, made an award reciting the fact of the injury and also the’ claimant’s average weekly wage of $40, and that he was temporarily incapacitated, and ordered the employer and the Casualty Reciprocal Exchange, the insurer, the other appellant, to pay the appellee compensation at the rate of $18 per week.

On July fith, 1923, after further examination of appellee, the insurer was notified by the 'Commission “that if no objection is raised before July 10th, 1923, the former order will be modified to allow oom'pensatiqn for three-fourths loss of use of leg, subject, bowevex, to a credit for such amount as may have been paid on account of the previous order passed in this case.”

On July 6th, 1923, the insurer replied 'to this notice protesting against the entering of any award fixing the disability at tbree-fourths the loss of the use of the leg; formally denying the jurisdiction of the 'Commission “because the record discloses that the average compensation of the employee is in excess of $2000 a year.” The insurer calls attention to the fact that it has paid large medical bills and alleges that several doctors have given the opinion that the disability does not exceed 50%, and states that,. notwithstanding its denial of the jurisdiction of the 'Commission, it has continued the payment of the weekly sums awarded and has continued to provide medical treatment'and has offered and stands ready to pay to' the said employee a sum equal to compensation predicated upon 50% o-f the loss of the use of the leg, with credit for payments already made, which offer the said employee has not accepted.

Whereupon a rehearing was ordered by the 'Commission:

1. To determine whether the Commission has jurisdiction, because the records disclose that the average compensation of the employee is in excess of $2,000 a year.

2. To determine -the nature and extent, of the disability.

At the conclusion of the hearing on July 25th, 1923, the ■Commission found for the claimant on both issues, and that The claimant sustained a permanent partial disability oc■casioned by three-fourths loss of the use of the left leg and rescinded it’s former order of E'ebruary 18th, 1922, and ordered, in lieu thereof, “that the E. IT. Koester Bakery, employer, and Casualty Reciprocal Exchange, insurer, pay unto-Paul Ihrie compensation at the rate of $18 per week, payable weekly, for the period of o-ne hundred and thirty-one and one-fourth weeks, said compensation to begin as of the ■28th day of January, 1922, and that final settlement receipt Be filed with the Commission in due time, subject, however, To ’-a credit for such amount as may have been paid on account of the previous order passed in this case.”

From that order an appeal was taken by the employer and -the insurer to the Baltimore City Court

At the trial of said appeal the claimant submitted tbe following issue:

“Did Paul Ihrie suffer seventy-five per cent, loss of use of the left leg, as the result of an accidental personal injury while in the employ of the E. H. Koester Bakery, on January 24, 1922?” ■

And the employer- and insurer submitted the following .'issue, viz.:

“Was the salary of the employee at the time of the happening of the accident forming the basis of the claim in this case in excess of $2000 a year?”

Both of these interrogatories were refused by the trial ■court.

1 It granted, as modified, claimant’s prayer, -and refused the "following prayer offered by the employer and insurer.

“The jury are instructed that if they shall find- from the ■evidence that the claimant had received a salary o-f $40 a week for a period of one year prior'to the date of the accident, or longer, then the answer of the jury to the employer’s first issue must he ‘yes’.”

'The verdict was in favor of the claimant, affirming the award of the 'Commission. Erom the judgment entered on that verdict this appeal' was taken.

There 'are two bills of exception, the first to the granting of claimant’s prayer and the refusal of the employer’s and insurer’s prayer; the second to the refusal to submit to the jury for its determination the issue raised' by the employer’s and insurer’s interrogatory.

As the only point raised by the appeal, as stated in appellants’ 'brief, is involved in the refusal to submit to- the jury the issue requested by the employer and insurer and to1 grant their prayer, it is unnecessary to consider claimant’s granted prayer, except to say in passing that it excluded the inquiry which the appellants sought to have submitted to the jury. The sole question, then, for our determination is the meaning of the word “salary” as used in section 63 of article lO'l of the Annotated Code of Maryland,' said article being a codification of the Workmen’s Compensation Act. The section referred to provides as follows:

“This act shall not apply to * * * any employee whose salary is in excess of two thousand dollars a year * * *”

It is strongly urged by appellants that there is nothing in the act to indicate that the Legislature intended to differentiate between “wage” and “salary”; that, all the way through “section 36, which is the compensation section of the law, * * * the word ‘wage’ is used, and nowhere therein will the word ‘salary5 he found.- To hold' that the Legislature did not intend by the use of the term ‘wage’ to include the term ‘salary’ would he in effect to deny a salaried employee all compensation or benefit whatsoever under the law in question, for unless the compensation of the salaried employee is fixed by section 36 of the law, there is no compensation whatsoever provided for him in the Workmen’s Compensation Law. The word ‘salary’ is not used in that section, and unless the word ‘wage’ includes ‘salary/ the salaried employee by such construction -would be denied .all relief or benefit under tbe -act.”

It is a sufficient answer to the contention as to the effect of the terms used in section 36 to say that it does not necessarily follow that, because -the Legislature meant the word “wage,” as used in that section, to- include the worfl “salary,” it must have meant the word “salary,” as used in other sections, to include the word “wage.” In the broadest significance, a “wage” is compensation for services rendered another. In this sense it is broad enough to include “salary,” though not ordinarily so used. It was entirely appropriate to so use i-t when dealing generally with employees in the section referred to. And that all classes of employees, not excluded by ■other sections, were intended to he included in section 3'6 is indicated by section 53, which prohibits any employer from deducting any portion of the insurance premium from the “wages” or “salary” of any employee entitled to the benefits of the act..

In sections other than the one we are now asked to- construe, where the word “salary” is used, it clearly was not intended to include “wages” as ordinarily understood. Thus, section 3 provided for the salaries of the 'Commissioners-; and in section 53, above referred to,, the words “salary” and “wages” are used in the disjunctive, clearly indicating a recognition .by the Legislature of the distinction between them in ordinary use.

It seems to us not without -significance that in section 63, in describing persons who were to be excluded from the benefit of the act by reason of the size of their compensation, the Legislature used a term having a restricted rather than'one having an inclusive- meaning, in defining compensation. If in section 63 it had been intended to include all employees who earned more than $2,000 a year, “compensation” would have been apt in referring to- earnings. Or the word “wages” might have been used, as it was in section 36, to indicate the general application of the sections.

Of all possible words, it would be hard to select one more inappropriate than “salary” to define the compensation of one employed by the day or week, with no certain tenure.

In Blick v. Mercantile Trust Company, 113 Md. 487, it was said: “ ‘‘Salary’ in itself imparts a spécifie contract for a specific sum for a certain period of time.” In that case the following was quoted with approval from Words and Phrases, vol. 7, page 6287. “There are three modes of compensating; persons for service: fees, salaries and wages, all different each from the other; and the difference immemorially well understood. Fees are compensations ¡for particular acts as-the fees of clerks, sheriffs, lawyers, physicians, etc. Wages, are compensations for services by the day or week, as of laborers, etc. 'Salaries are per annum compensation to- men. in official, and some other stations. * * *”

Section 63 was construed 'by the Industrial Accident Commission of this State in 1918, in the case of David Drummer, employee, v. Bethlehem Steel Company, employer, and self-imsurer, Claim Eo. 16496. In a very able opinion by the late 'Chairman, Charles D. Wagaman, Esq., it was held that:. “When the Legislature exempted from the benefits of the-Compensation Act those employees receiving a salary in excess of $2,000, -it gave expression to an evident intention to-exclude from the benefits of the act those persons whose employment involved permanency and who. were> at the same time, receiving a substantial income from said employment,, and it did not exclude from the benefits of the act those who-are receiving only temporarily a substantial income.

“We believe this conclusion is in harmony not only with the plain meaning of the language of the act, but also with the general tenor and purpose of the Compensation Law, to-provide temporary relief for the large class of persons engaged in extra-hazardous employment, a vast majority of whom depend for their daily sustenance upon the uncertain tenure of employment from day to day dr week to- week.”

We adopt this expression as our own. To hold otherwise,, in our opinion, would be contrary to. the spirit of the entire, act, especially section 61, which provides that “this article' shall he so interpreted and construed as to effectuate its general purpose, and section 62, sub-section A, which provides that “it shall be presumed in the absence of substantial evidence to the contrary: (a) That the claim comes within the provisions of this article.” See also Kelley’s Dependents v. Hoosack Lumber Co., 95 Vt. 50.

We find no error in the rulings appealed from.

Judgment affirmed, with costs to appellee.  