Clayburn v. Soueid, Inc., 370

• Decision Date: 25 June 1965
• Docket Number: No. 370,370
• Citation: 239 Md. 331,211 A.2d 728
• Parties: Otis CLAYBURN v. SOUEID, INC., et al.
• Court: Maryland Court of Appeals

Page 331

239 Md. 331

211 A.2d 728

Otis CLAYBURN v. SOUEID, INC., et al.

No. 370.

Court of Appeals of Maryland.

June 25, 1965.

Karl G. Feissner, Takoma Park (Alpern & Feissner, Washington, D. C., on the brief), for appellant.

Jo V. Morgan, Jr., Bethesda (Harry L. Ryan, Jr., Washington, D. C., on the brief), for appellees.

Before HORNEY, MARBURY, SYBERT, OPPENHEIMER and BARNES, JJ.

OPPENHEIMER, Judge.

This Workmen's Compensation appeal involves the question of whether or not the injured claimant was a casual employee. The Commission held he was not; on appeal, Judge Shure, sitting without a jury, determined he was. While the hearing before Judge Shure was de novo, the testimony before him, for the most part, was the same as that before the Commission. The facts, with exceptions which will be referred to, are undisputed.

There is a threshold jurisdictional question. The appeal from the order of the Workmen's Compensation Commission was filed on November 18, 1963, thirty-one calendar days from October 18, 1963, the date of the order. Maryland Rule B4 requires that, in a matter such as this, an order for appeal shall be filed within thirty days from the date of the action appealed from. However, Rule 8 excludes the day of the Commission's order, and a Sunday, if that day is the last day of the period. November 17 was a Sunday. The thirty day limitation, therefore, did not expire until November 18, and the order of appeal, having been filed on that day, was timely. The injured claimant, the appellant here, was not named as a party in the original appeal, but on December 17, the court granted the employer's motion to include the claimant as a party with the Commission. Rule B2 c requires that a copy of the order for appeal shall be served on the agency, but does not require that all parties to the proceedings before the agency shall be joined. Rule B2 d requires that, promptly after receipt of the copy, the agency shall give notice of the filing of the appeal to every party to the proceeding before it or his representative. There is no contention that this procedure was not followed, or that the appellant was prejudiced by not being named as a party in the original appeal; indeed, in the argument before us, the appellant's counsel asked leave to waive his jurisdictional contentions. In any event, the contentions are without merit.

After a hearing, the Commission found that Otis Clayburn, the claimant and appellant here, sustained an accidental injury arising out of and in the course of his employment of April 8, 1963, and that at the time of the injury he was not a casual employee within the meaning of the law. It found that Clayburn was temporarily totally disabled to May 22 and sustained a permanent partial disability of 10% industrial loss of use of his body as a result of the injury to his back. It found, further, that Clayburn's average weekly wage was $35. Soueid, Inc. and Fathi Soueid, employer and non-insurer, (the appellees) were ordered to pay compensation accordingly, and to pay the bills incurred by Clayburn for medical services and appliances. Soueid and his company appealed to the Circuit Court for Montgomery County, claiming that the Commission erred in finding Clayburn was not a casual employee and in finding that his applicable average weekly wage was $35. After the hearing before him, Judge Shure held that, under the law and the evidence, the Commission erred in interpreting the facts and that Clayburn's employment was casual in nature. He remanded the case to the Commission for the finding that Clayburn was not entitled to recover.

Fathi Soueid is a builder of houses, averaging, according to him, between six and eight a year. He sublets his work, except for the cleaning of the houses, laying drain tile, leveling the ground, moving material and the like. He employs laborers for this work, to whom he personally gives instructions. During the first three months of 1963, Soueid had nine laborers intermittently engaged in this class of work. He pays his laborers in cash, and keeps no books or records of any kind as to the payments, except that he pays the Social Security tax for them.

Clayburn testified that Soueid had picked him up a week before Christmas in 1962 in a labor pool on Eastern Avenue in the District of Columbia, to work for him a few days in Maryland. After a few days, Soueid asked Clayburn if he wanted a steady job. Clayburn testified that "I said yes.' He said, 'You are a good man.' He said, 'I'll give you a steady job.' I said, 'That is what I'm looking for." Soueid raised Clayburn's hourly pay from $1.50 to $1.75 and thereafter called for Clayburn, by previous arrangement, at Chevy Chase Circle, which is some distance from the labor pool on Eastern Avenue. Clayburn testified that he worked steadily for Soueid, when the weather was favorable, from the time of this first employment in December, 1962, until he was injured on April 8, 1963, with the exception of one day in April. He had worked for Soueid on April 1, 2 and 3. Clayburn testified that Soueid then told him he had to go out of town and asked him if he wished to work one day for a friend of Soueid, which Clayburn did. With this exception, Clayburn had worked for no one other than Soueid during the entire period. April 8 was on a Monday. On the morning of that day, Soueid picked up Clayburn at Friendship Heights, told him they were going to a new job and let him out at the house at which Clayburn was to work. Soueid instructed Clayburn to clean the trash out of the basement and grade it down. Clayburn was going into the basement on a ladder; the ladder skidded to one side and Clayburn fell, injuring his leg and back.

Clayburn testified further that Soueid paid him weekly, on Fridays, and that his pay was $65 or $70 a week. Soueid denied that he paid Clayburn weekly, and testified he paid him at the end of each day. On the basis of his Social Security records, Soueid testified that for the first three months of 1963 he paid Clayburn a total of $56, which at $1.75 an hour, would be for 32 hours. Soueid did not remember how many days Clayburn had worked for him in December, 1962, it 'could be 1, 2, 3, maybe 4 days.' He said Clayburn had worked for him three days in April, before the day of the accident, for which he was paid $37.50, representing about 21 hours work.

Other than on the matters of the amount of time worked, whether payment was made daily or weekly, and whether Clayburn worked for some one other than Soueid for one or two days immediately preceding the day of the accident, Clayburn's testimony was not contradicted either before the Commission or the judge.

Soueid's testimony, both before the Commission and in court, was vague. He did not recall engaging Clayburn's services, although he remembered including him in his Social Security reports. He stated that when he needed laborers to clean one house or move materials from one location to another, he went to the labor pool on Eastern Avenue, in Silver Spring. He does not take out any withholding tax when he pays these men. He used to send W2 forms to the men at the end of the year, but does not do so any more. He saw Clayburn working for Bogdan, another builder, on the 4th or 5th of April. In December, 1962, Soueid had approximately four houses under construction; in April, 1963, at the time Clayburn was injured, he had three houses in the subdivision where Clayburn was working. Soueid admitted that the second or third time Clayburn worked for him, he raised his hourly pay from $1.50 to $1.75.

The only witness who testified for the first time in court, on the appeal, was Julius Bogdan, a builder, who testified he hired Clayburn for two days, April 4 and 5. This was the first and only time he employed Clayburn. Clayburn denied working for Bogdan and that he had ever seen him before Bogdan's court appearance.

This Court has had a number of cases before it involving the question of whether or not the particular employment involved was casual. We have pointed out that the Workmen's Compensation Act does not define the term 'casual' as therein used to describe one of the classes of employees to whom the Act is not intended to apply [Code 1957, Art. 101, § 67(3)], and that, in the absence of a statutory definition, the application of the term should be made in each case according to the particular facts presented. Hygeia Ice & Coal Co. v. Schaeffer, 152 Md. 231, 238, 136 A. 548 (1927); State Accident Fund v. Jacobs, 134 Md. 133, 134, 106 A. 255 (1919). 'Casual,' as used in the Act, 'is a word of indefinitely varied import.' More v. Clarke, 171 Md. 39, 52-53, 187 A. 887, 893, 107 A.L.R. 924 (1936).

Nevertheless, criteria have been developed, in our Court and in other jurisdictions which have similar statutes, to which we have given weight in determining whether an employment is casual or regular. These criteria include the nature of the work, the duration of the employment, and whether it is occasional, incidental, or a usual concomitant of the employer's business. Moore v. Clarke, supra, at 53 and authorities therein cited.

Where the terms and manner of employment are disputed and different inferences may be drawn therefrom, the issue as to the relation that existed between the parties is a mixed question of law and fact, to be determined by the trier of the facts, under proper instructions, Hygeia Ice & Coal Co. v. Schaeffer, supra, but where the essential terms and manner of employment are undisputed, the question is one of law for the Court. Charles Freeland v. Couplin, 211 Md. 160, 168, 126 A.2d 606 (1956); Sun Cab Co. v. Powell, 196 Md. 572, 582, 77 A.2d 783 (1951); Williams Construction Co. v. Bohlen, 189 Md. 576, 579, 56 A.2d 694 (1948). Accordingly, where the determinative facts were not in dispute, we have held, as a matter of law, on the facts in the particular case, that the employment was casual. East v. Skelly, 207 Md. 537, 114 A.2d...