(139 Md. 313, 115 Atl. 59.) attached again on the other side; but according to the testimony of Alles the accident occurred after the sling had been passed under the beam and attached to the cable on the opposite side, and after the signal had been given to the craneman to start. He says it occurred before the section of the main was lifted by the crane from the floor of the cellar. The plaintiff offered evidence tending to show that the beam that fell had not been bolted to the bracket; that the pressure of the cable on the beam was too light to have displaced it had it been bolted; that the beams which were removed by the employees of the Variety Company had all been bolted and riveted, and that they had every reason to assume that the beam in question was also bolted; that it was too dark in the basement for Alles to notice that the beam was not bolted, and that there were boards and other material on top of the beams that prevented the employees from seeing the ends of the beams resting on the brackets. The defendant, on the other hand, offered evidence tending to show that the floor beams had been placed in position temporarily, and that the work could not be completed until all the pipes. and machinery in the celler had been installed, but that all of the floor beams had been bolted, and would not have been sufficiently secure to enable persons to walk or stand on them unless they had been bolted. It also appears from the evidence that Alles had been awarded compensation under the Workmen's Compensation Act of this state (3 Code Pub. Gen. Laws, art. 101) as an employee of the Variety Company, and that the Ætna Life Insurance Company, as insurer of the Variety Company, paid the compensation, amounting to $420, and $93 for "medical expenses." At the conclusion of the testimony the plaintiff offered two prayers, which were granted by the court below. The first prayer was, in effect, an instruction that if the jury found that the Variety Company was in 31 A.L.R.-65. vited by the defendant to enter upon the premises for the purpose of installing the gas main, and that Alles was employed by the Variety Company in the performance of that work, then it was the duty of the defendant to exercise reasonable care for his safety while he was so engaged. The second prayer was in the form of the usual damage prayer in negligence cases, and authorized the jury to allow such damages as would be a fair and just compensation for the injuries sustained by Alles. The defendant offered four prayers, all of which were rejected. All of them sought to withdraw the case from the jury; the first and third on the ground that there was not sufficient evidence of negligence on the part of the defendant, the second on the ground that the work of installing the floor beams was done by the Bridge Company, an independent contractor, for whose negligence the defendant was not liable, and the fourth on the ground of contributory negligence on the part of Alles. The only exception in the record is to the court's ruling on the prayers. In view of the evidence to which we have referred, it is clear that the case could not have been withdrawn from the jury on the ground that there was no evidence of negligence on the part of the defendant, or on the ground of contributory negligence on the part of Alles. The appellant insists that the only evidence in regard to the floor beams being bolted is the evidence adduced by the defendant to the effect that all of the floor beams had been bolted by the employees of the Bridge Company, but it overlooks the testimony of Alles, who stated that he was positive that the beam that fell was not bolted or riveted, and the testimony of other witnesses who were present at the time of the accident to the same effect. The weight of this eviwith that of the dedence, as compared for jury on confendant, was, of flicting evicourse, a matter en Trial-question dence. tirely for the jury. In case of Kann & Co. v. Meyer, 88 Md. 541, 41 Atl. 1065, 5 Am. Neg. Rep. 152, Judge Briscoe, quoting from Cooley on torts, 718, said: "If one expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit. And this rule obtains and is recognized in both the English courts and in the courts of this country." Nor was there sufficient evidence of want of care or prudence on the part of Alles to justify the court in saying, as a matter of law, that he was guilty of contributory negligence. He had assisted in mov -question of contributory negligence. ing the floor beams in order to lower the sections of the gas main into the cellar or basement, and, according to his testimony, had found them all bolted and riveted, and the evidence of the defendant is that that is the usual and only safe way to leave them, even when they are placed in position temporarily. The basement was not well lighted, and boards and other material lying on the beams obstructed the view of the brackets when he was standing on or above. the floor beams. Whether the exercise of due care required him, under all the circumstances of the case, to carefully examine each beam to see that it was properly bolted before going under it for the purpose of assisting in attaching the sling to the cable hook, was a question that the defendant might, by a proper prayer, have submitted to the jury, but not one to be determined by the court. In the case of Cooke v. Baltimore Traction Co. 80 Md. 551, 31 Atl. 327, 12 Am. Neg. Cas. 11, the court said: "Where the nature and attributes of the act relied on to show negligence contributing to the injury can only be correctly deter mined by considering all the attending and surrounding circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it, and it is not for the court to determine its quality as matter of law." And in the case of Winkelmann & B. Drug Co. v. Colladay, 88 Md. 78, 40 Atl. 1078, 4 Am. Neg. Rep. 645, it was said to be the well-settled rule "that unless there is some prominent and decisive act, in regard to the effect and character of which no room is left for ordinary minds to differ, courts will not withdraw the case from the consideration of the jury." This rule has been so frequently stated in this state that further reference to the cases is unnecessary. The contention more seriously urged by the appellant is that the work of placing the floor or I beams in position was done by the Bridge Company, an independent contractor, and that the defendant is not liable for any negligence of the Bridge Company in the performance of that work. The evidence shows that the work done by the Bridge Company was commenced in 1917, and was completed as far as was desired by the defendant in the winter of 1917-18, and was then suspended and accepted by the defendant, who resumed possession of the building until the spring of 1919, when it notified the Variety Company that it was ready for that company to proceed with the work of installing the gas main under its contract. The cases of Deford v. State, 30 Md. 179, City & Suburban R. Co. v. Moores, 80 Md. 348, 45 Am. St. Rep. 345, 30 Atl. 643, Smith v. Benick, 87 Md. 614, 42 L.R.A. 277, 41 Atl. 56, Decola v. Cowan, 102 Md. 551, 62 Atl. 1026, and Weilbacher v. Putts Co. 123 Md. 249, 91 Atl. 343, Ann. Cas. 1916C, 115, quoted and referred to by the appellant, are illustrations of the familiar doctrine relied on. But there are well-established exceptions to the rule, and one of them is that (139 Md. 313, 115 Atl. 59.) ant-avoiding ploying contractor. a person or corporation on whom the law imposes a posiMaster and serv- tive duty cannot liability by em- avoid liability for failure to perform that duty by employing a contractor for that purpose. This exception is clearly and forcibly stated by Chief Judge Boyd in Bernheimer Bros. v. Bager, 108 Md. 551, 129 Am. St. Rep. 458, 70 Atl. 91, where it was said: "It would be carrying the doctrine of independent contractor beyond what the law authorizes to permit an owner of property to thus insecurely erect a dangerous instrument over where his employees were to work, and then escape the result of his negligence by letting the work to be done to a contractor. The appellants were under obligation to use reasonable care in protecting their servants while they were engaged in the work, and could not thus shift the responsibility. The general rule as to independent contractors is thus qualified by the authorities: 'A person or corporation on whom positive duties are imposed by law cannot avoid liability for injuries resulting from failure to perform such duties, by employing a contractor for the purpose; nor, in such a case, is the fact that the injuries resulted from the contractor's negligence a defense.' 16 Am. & Eng. Enc. Law, 197. Illustrations of that rule are given, and on page 199 of that volume it is said: A master's duty to furnish to his employees a safe place to work cannot be delegated to an independent contractor.' This court has announced similar views in several cases. In City & Suburban R. Co. v. Moores, 80 Md. 348, after citing Deford's Case, 30 Md. 179, and O'Donnell's Case, 53 Md. 110, 36 Am. Rep. 395, we referred to St. Paul Water Co. v. Ware, 16 Wall. 566, 21 L. ed. 485, where the question is fully discussed, and added that there were many cases in this country and England to the effect that 'when the employer owes certain duties to third persons or to the public in the execution of a work, he cannot relieve himself from liability to the extent of that duty, by committing the work to a contractor."" As we have said, the work of the Bridge Company had been completed as far as desired by the defendant, in 1917 or 1918, and the building was under control of the defendant when it notified the Variety Company to proceed with its work, and acceptance of the facts of the case struction workbring it clearly units of con effect. within the exception stated. In 14 R. C. L. p. 86, § 22, it is said: "Generally speaking, as soon as the control of the subject-matter of the contract has been transferred to the employer, as a result either of the completion or stoppage of the work, he incurs the responsibilities which the law attaches to the exercise of the control; and the mere fact that the dangerous conditions which caused the injury were originally created by the negligence or other tortious act of a contractor will not afford him any protection, if he permits them to continue after it is in his power to remove them." The only remaining question to be considered is the right of the plaintiff to maintain the suit. The appellant says in his brief that the suit was originally brought in the name of the Variety Company, the insurance company, and Harry Alles, and the agent of the insurance company testified that the "suit was started by the Etna Life Insurance Company and Harry Alles." The docket entries show, however, that the suit was brought on the 6th of February, 1920, and that on motion of the "plaintiff" made in open court on January 18, 1921, the "plaintiff” was permitted, apparently without any objection, to amend the "caption" and declaration, by interlineation, by adding "for the benefit of" in two places, so as to make the suit appear as brought by the Variety Company for the benefit of the insurance company and Harry Alles, and that on the same day the defendant filed the general issue plea, issue was joined, and the jury sworn. Up Appeal-form of action-amendment of caption. on this state of the record we must treat the suit as having been brought in the name of the Variety Company, for the benefit of the insurance company and Harry Alles, and the question arises whether it can be maintained under the terms of the Workmen's Compensation Law of this state, Harry Alles having previously claimed and been awarded compensation under that act by the State Industrial Accident Commission. This question was raised in the case of Hyde v. Blumenthal, 136 Md. 445, 110 Atl. 862, where the suit was brought in the name of the employer, "for the use of" the insurance company and the injured employee, but was not decided because the judgment recovered by the plaintiff was reversed, without a new trial, on other grounds. The precise question was not raised or considered by the court in Hagerstown v. Schreiner, 135 Md. 650, 109 Atl. 464, where the suit was instituted and judgment recovered by the widow and children of the deceased employee, after having been awarded compensation under the act, and where the court held that their election to accept compensation under the act was a complete bar to any further suit by them. The statute of Illinois (Laws 1911, p. 314) provided, in § 3: "No common-law or statutory right to recover damages for injury or death sustained by an employee while engaged in the line of his duty in such employee other than the compensation herein provided shall be available to any employee who has accepted the provisions of this act or to anyone wholly or partially dependent upon him or legally responsible for his estate." Subsection (b) of § 17 of that act contained the following provision: "(b) If the employee or beneficiary has recovered compensation under this act, the employer by whom the compensation was paid or the person who has been called upon to pay the indemnity under §§ 4 and 5 of this act, may be entitled to indem nity from the person so liable to pay damages as aforesaid, and shall be subrogated to the rights of the employee to recover damages therefor." In construing that act the supreme court of Illinios said that §§ 3 and 17 should be construed together, and that "paragraph (b) provides that if the employee has recovered compensation the employer may be entitled to indemnity from the person liable to pay damages and shall be subrogated to the rights of the employee to recover damages. He is not entitled, however, to more than indemnity out of the damages recovered and the subrogation must be limited to that amount. The amount of recovery, however, is not so limited." Houlihan v. Sulzberger & Sons Co. 282 Ill. 76, 118 N. E. 429. Section 29 of the New York Act (Consol. Laws, chap. 67, as amended. by Laws 1914, chap. 41) required the employee, or his dependents, to elect to take compensation under the act or to pursue his remedy against the negligent person, and further provided: "If he elect to take compensation under this chapter, the cause of action against such other [person guilty of negligence] shall be assigned to the state for the benefit of the state insurance fund, if compensation be payable therefrom, and otherwise to the person or association or corporation liable for payment of such compensation." Construing this section, the supreme court of New York said: "The Workmen's Compensation Law takes no rights from the injured employee which otherwise he would have had against a third party. Instead, it gives him an additional right, namely, the right to compensation from his employer. He can elect to accept the compensation under the statute, or he can sue the third party as though the Workmen's Compensation Law did not exist.. If he elect to take compensation then he cannot later sue the third party whose negligent act injured him. . . . In that event his claim against the (139 Md. 313, 115 Atl. 59.) third party is assigned to the person paying the compensation by virtue of the provisions of § 29 of the statute. That party may then sue the wrongdoer and may recover in the same manner as the injured employee could have recovered had he brought suit against the wrongdoer. And the amount that may be so recovered is not limited to the amount paid as compensation. . . . Paying the compensation, the employer may then sue the wrongdoer, and all that is recovered above the amount paid as compensation is for the benefit of the injured employee." Louis Bossert & Sons v. Piel Bros. 112 Misc. 117, 182 N. Y. Supp. 620. See also Casualty Co. of America v. A. L. Swett Electric Light & P. Co. 174 App. Div. 825, 162 N. Y. Supp. 107. The Illinois act, so far as the present question is concerned, is very much like § 57 of the Maryland act (§ 58, art. 101, vol. 3 of the Code) prior to its amendment by chapter 456, of the Acts of 1920. The Illinois act provided that the employer should be "subrogated" to the rights of the employee to recover damages, while the Maryland act provided that "if compensation is claimed and awarded or paid under this article any employer may enforce for the benefit of the insurance company, or association carrying the risk or the state accident fund, or himself, as the case may be, the liability of such third person; provided, however, if damages are re covered in excess of the compensation already paid or awarded to be paid under this article, then any such excess shall be paid to the injured employee or, in case of death, to his dependents, less the employer's expenses and costs of action." The liability which the employer is thus authorized to enforce is "the liability of such third person," and the only liability of "such third person" referred to in the act is the liability for for "damages," which the injured employee could have enforced had he elected to do so. This liability is not limited by the act to the compensation awarded or paid, but, on the contrary, the act clearly indicates that no such limitation was intended, and, following the reasoning and decision of the cases referred to, it seems clear that the legislature intended the same against a third measure of recovery person for into apply as would under Compenhave applied had ation Act. the injured employee elected to pursue his remedy against the negligent third person. Damages jury to employee The fact that the suit is in the name of the employer, for the benefit of the insurance company and the injured employee, Action-formHarry Alles, if not in strict compliance with the statute, is immaterial, as the act expressly directs the application of the amount recovered. effect. Finding no error in the ruling of the court below, the judgment appealed from will be affirmed. ANNOTATION. Independent contractor: extent of the employer's liability after he has assumed control of the subject-matter of the stipulated work, § 1. General doctrine regarding the em- § 2. Illustrative decisions, 1032. 81. General doctrine regarding the em- In earlier monographs, numerous cases have been reviewed in which the liability of the employer for injuries caused by the dangerous condition of the product of the stipulated work, after it had passed under his control, was predicated upon one or other of the following grounds: (1) That the dangerous condition was a direct and necessary result of the contractor having executed the work in the manner prescribed by the provisions of the |