Barnes v. Thomas A. Myers & Co.

• Decision Date: 22 June 1932
• Docket Number: 58.
• Citation: 161 A. 279,163 Md. 206
• Parties: BARNES v. THOMAS A. MYERS & CO. ET AL.
• Court: Maryland Court of Appeals

161 A. 279

163 Md. 206

BARNES v. THOMAS A. MYERS & CO. ET AL.

No. 58.

Court of Appeals of Maryland

June 22, 1932

Appeal from Court of Common Pleas of Baltimore City; Robert F Stanton, Judge.

Proceedings under the Workmen's Compensation Act by Joseph H. Barnes employee, against Thomas A. Myers & Co., employer, and the London Guarantee & Accident Company Limited, insurer. From a judgment reversing a compensation award of the State Industrial Accident Commission, the employee appeals.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, DIGGES PARKE, and SLOAN, JJ.

Daniel B. Leonard, of Baltimore (Bowie & Burke, of Baltimore, on the brief), for appellant.

G. Ridgely Sappington and D. Heyward Hamilton, Jr., both of Baltimore, for appellees.

BOND C.J.

The principal question is whether upon evidence taken in this case the appellant might be found by a jury to have been an employee of Thomas A. Myers & Company, at the time of an injury sustained by him, and to have been entitled as such to compensation from the appellees under the Workmen's Compensation Act, Code art. 101, as amended. Barnes, the claimant to compensation, was an inspector of lumber, and while on a pile unloaded by stevedores, and inspecting it for Thomas A. Myers & Co., who are dealers in lumber, he was injured and temporarily disabled by a fall caused by a parting of the pile. The State Industrial Accident Commission first disallowed the claim, on the ground that he was not an employee, but, after a rehearing at which evidence was taken, and allowance of a similar claim was shown to have been made by the commission in 1925, compensation was awarded. On appeal the court of common pleas of Baltimore city directed a jury sworn to try questions of fact to render a verdict that Barnes was not an employee, and so was not entitled to the compensation; and this further appeal is from the judgment entered on that verdict.

Thomas A. Myers & Co. were members of an association of lumber dealers known as the Lumber Exchange of Baltimore City. The exchange was not a profit-making association, but only a convenience or agency of the dealers, the expenses of which were paid by contributions from the members. It maintained a bureau which selected and licensed skilled inspectors of lumber to be provided for inspection as the members might require it, and it fixed the rate of charges to be made by inspectors for the work. Barnes, who had been a lumber inspector for about forty-five years, was one of these licensed inspectors called or furnished by the bureau. The regular practice was that, when a member dealer needed an inspector, it would call upon the bureau to provide him, the manager of the bureau would call the inspector next in order on its list and send him to the dealer, and the dealer would give the inspector instructions for his work. The inspector himself would employ helpers or assistants which he would need. And for the service the inspector would render the dealer a bill charging at the rate of 50 cents a thousand feet of lumber inspected, and would himself pay his helpers from the money received in payment. To the bureau of the exchange, members would make an additional payment of 10 cents per thousand feet inspected, by way of contributing to the expenses of maintaining the bureau. The inspectors used were not listed as employees on the pay rolls of Thomas A. Myers & Co., but were referred to in the books only on an "inspection account," as it was called. When the work of inspection in any one instance was finished, the inspector would report to the manager of the bureau, and render himself eligible for the next call by any member. There was an account of an inspector's earnings kept at the bureau, but nowhere else. An inspector has in the past received in a year from inspections for members of the exchange an aggregate amount of as much as $2,000 or $3,000.

Evidence was offered to show that when in 1925 the commission had decided that an inspector used in this system was an employee of the dealer using him, several members of the exchange, including Thomas A. Myers & Co., had their compensation insurance made to cover disabilities to inspectors and their assistants. And on appeal below exceptions were taken to rulings on the evidence referring to this fact. It appears, too, that Thomas A. Myers & Co., reported the accident to Barnes as one to an employee.

The facts stated were all adduced from witnesses called by the claimant, and are uncontroverted, and the question to be answered upon this settled state of facts, What legal principles apply to persons standing in that given situation was a question of law. "The terms and manner of employment were, of course, matters of fact for the jury; it being for the Court to declare the legal relation that existed between the parties, upon any given state of facts." Deford v. State, to Use of Keyser, 30 Md. 179, 204; Hygeia Ice Co. v. Schaeffer, 152 Md. 231, 235, 136 A. 548; Rawson v. Jones-Winifrede Co., 100 W.Va. 263, 130 S.E. 492, 43 A. L. R. 330. The terms and manner of employment being settled for the court in this instance, there was no issue of fact to be answered by a jury; it was for the court to declare the resulting relation. This must be so in a proceeding in which a reversal or modification of the commission's order is sought, as well as in any ordinary civil proceeding, for even though by the provision in section 56 the decision of the commission is taken as prima facie correct,...