Bogatsky v. Heller

Decision Date10 December 1926
Docket Number56.
Citation135 A. 416,152 Md. 18
CourtMaryland Court of Appeals

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

"To be officially reported."

Proceedings for compensation under the Workmen's Compensation Act by Fred W. Heller, employee, in which compensation was awarded against Maurice Swerdlin, employer, and the New York Indemnity Company, insurer. From a judgment reversing an order of the Industrial Accident Commission affirming the award on the hearing of a petition to reopen the case, Leon Bogatsky, employer, and the Employer's Indemnity Corporation, insurer, appeal. Reversed and remanded.


William D. Macmillan, of Baltimore (Oliver Y. Harris, of Baltimore on the brief), for appellants.

Roszel C. Thomsen, of Baltimore (Walter L. Clark, of Baltimore, on the brief), for appellees.


Fred W Heller, a house painter, while at work on a house owned by Maurice Swerdlin, was on March 27, 1925, injured, and on April 21, 1925, he filed with the State Industrial Accident Commission a claim for compensation, in which he stated that when he was injured he was employed by Maurice Swerdlin, and that his injury arose out of and in the course of such employment. On March 31, 1925, there was also filed with the commission what purported to be an employer's report which also gave the name of Swerdlin as the employer, although that report was not signed by Swerdlin or any other person for him, and it does not appear by whom or by whose authority or in what manner it came to be found in the files of the commission. The record indicates that a notice dated on April 22, 1925, was directed to Swerdlin and to the New York Indemnity Company, his insurer, that the claim had been filed against him as employer, and that unless a hearing was requested the commission would decide the claim on April 28, 1925, on the evidence then in their possession, although its receipt was not admitted. No such request was made, and on April 29, 1925, the commission awarded compensation to the claimant against Swerdlin and the New York Indemnity Company. Compensation appears to have been paid under that award until the following fall, when Swerdlin and the New York Indemnity Company asked that the case be reopened (1) to determine the identity of Heller's employer; and (2) to determine the nature and extent of disability. A hearing was held, and on January 28, 1926, the commission affirmed its previous order. From that order the appellees in this case appealed to the Baltimore city court, where the case was tried before the court and a jury. At the conclusion of the trial the court directed the jury to find for the appellees on six issues of fact framed to ascertain whether at the time of the injury Heller was an employee of Swerdlin within the meaning of the Compensation Act. These rulings resulted in a verdict for the appellees reversing the order of the commission, and from that judgment this appeal has been taken.

The sole question presented by the appeal is whether, upon all the evidence before it, the trial court was justified in peremptorily instructing the jury that at the time of the accident Heller was an employee of one Leon Bogatsky, and was not an employee of Swerdlin. Those prayers invoke the consideration by the court of the legal sufficiency of the evidence offered in connection with those issues as well as its legal effect, and it becomes necessary therefore to consider that evidence in connection with that question, keeping in mind the rule stated in Harrison v. Central Construction Co., 135 Md. 170, 108 A. 874, that in cases where the facts are conceded or undisputed, and there is no dispute as to the inferences to be drawn therefrom, their legal significance is a matter of law to be determined by the court, and if the correct legal interpretation of such undisputed or conceded facts is in conflict with the finding of the commission, its findings must give way, notwithstanding the provision of the statute that the award of the commission shall be "prima facie correct and the burden of proof shall be upon the party attacking the same" (article 101, § 56, C. P. G. L. of Md.), because if the facts are conceded or undisputed, there is no issue of fact to be submitted to the jury, and the question as to whether the finding of the commission was correct necessarily becomes one of law for the court to decide (Todd v. Furniture Co., 147 Md. 355, 128 A. 42, and the expression in Jewel Tea Co. v. Weber, 132 Md. 182, 103 A. 476), that the court "was not authorized to say that the appellant had met the burden imposed on it," was not intended to apply to such a case (Harrison v. Central Con. Co., supra).

Leon Bogatsky is a house painter. Maurice Swerdlin is engaged in the business of building and selling houses. For a number of years Bogatsky worked on Swerdlin's buildings. Several years ago Bogatsky became disabled, and since then he has himself done no active work but when Swerdlin so requested he furnished him workmen and supplies and charged him for that service 8 per cent. of the amount paid for such labor and materials. So much is undisputed, but the real dispute is as to whether the men so furnished Swerdlin were his employees or the employees of Bogatsky, and as to that the evidence is in substance this: Heller, in his claim for compensation, to which he made affidavit, certified that he was employed by Swerdlin, but in his testimony in court at the trial of the appeal he recanted and said that he was employed by Bogatsky. In explaining his first statement he said Bogatsky told him to say that, and that he did tell the inspector who brought him the paper that Swerdlin was his employer, because he did not know who carried the insurance, Swerdlin or Bogatsky, but that in fact Bogatsky employed him, and that he took orders only from him. He further testified that, so far as he knew, none of Bogatsky's painters worked on any but Swerdlin's work; that Bogatsky employed three or four painters and had a small shop near East Baltimore street; that in the four years he had worked for Bogatsky he worked only on Swerdlin's work, but he was directed by Bogatsky.

Maurice Swerdlin testified that when he had painting to do he gave it out to Bogatsky, and that he (Bogatsky) hired and discharged the men and directed them in their work, and at intervals rendered a statement to Swerdlin for the sums paid for the wages of these men and the materials used in their work, which he paid by check to Bogatsky; that in the construction of his buildings he employed other workmen directly or through a foreman, but that he had no control over Bogatsky or bis men, further than to tell Bogatsky when to work and when to stop. He further said that he had no definite contract with Bogatsky, or any arrangement about compensation; that when he wanted work done he would notify Bogatsky, who would furnish the labor and supplies for doing it and send Swerdlin the bill for the cost thereof plus 8 per cent. commissions. He also said that he had not reported the accident to the State Industrial Accident Commission, but had reported it to his insurer, but at the same time reported that the injured man was not his employee.

Leon Bogatsky testified that he was a painter; that at the time of the accident he was working for nobody, but that his men were working for Swerdlin; that he had no arrangement or contract with him, but that whenever Swerdlin wanted a man to paint he would send a "man over there to work for him"; that he told the man what to do, and Swerdlin told him (Bogatsky) what to do; and that he charged Swerdlin for the cost of labor and material plus 8 per cent. of such cost; and that when he saw Heller in the hospital he told him to say that he worked for Swerdlin, although Heller was on his (Bogatsky's) pay roll on which he paid insurance premiums.

Mrs. Ida Rosen, Mrs. Bogatsky's daughter, who kept his books, testified that:

"Pop has been disabled, and he closed up, and Mr. Bogatsky tells us how many men he wants on a job, and it was necessary for Mr. Swerdlin to carry compensation insurance, and he was supposed to cover them. * * * These men are practically employed by Mr. Swerdlin; it they are no good he does not keep them. I give them a list of how many men work there and the time they put in and keep that list, and he did get it every week. He gives us what they paint plus 8 per cent., not 7 per cent., and that does for the rent and other expenses."

She further said that Swerdlin did not employ anybody, but that he paid off their men through their foreman; that he gave them the cost of the...

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5 cases
  • Moore v. Clarke
    • United States
    • Maryland Court of Appeals
    • 12 November 1936
    ...what was said in the Harrison Case was approved in Todd v. Easton Furniture Mfg. Co., 147 Md. 352 [355], 128 A. 42, and in Bogatsky v. Swerdlin, 152 Md. 18, 135 A. 416. the reason it becomes a matter of law for the court to decide, as was pointed out * * * in the opinion of the court in the......
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    ... ... v. Hoffman, 142 Md ... 73, 76, 120 A. 227; Travelers Ins. Co. v. Connolly, ... 145 Md. 554, 565, 125 A. 900; Bogatsky v. Swerdlin, ... 152 Md. 18, 25, 135 A. 416; Travelers' Ins. Co. v ... Fox, 155 Md. 210, 216, 141 A. 547; Smith v ... Whitman, 159 Md. 478, 485, ... ...
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    • 14 June 1944
    ... ... as to whether the finding of the commission was correct ... necessarily becomes one of law for the court to decide.' ... Bogatsky v. Swerdlin, 152 Md. 18, 21, 135 A. 416, ... 417; Beyer v. Decker, 159 Md. 289, 291, 150 A. 804; ... Gunter v. Sharpe & Dohme, 159 Md. 438, ... ...
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