Clement v. Minning

• Decision Date: 03 April 1929
• Docket Number: 50.
• Citation: 145 A. 485,157 Md. 200
• Parties: CLEMENT v. MINNING ET AL.
• Court: Maryland Court of Appeals

145 A. 485

157 Md. 200

CLEMENT v. MINNING ET AL.

No. 50.

Court of Appeals of Maryland

April 3, 1929

Appeal from Baltimore City Court; Charles F. Stein, Judge.

Proceeding under the Workmen's Compensation Act by Fred A. Clement claimant, opposed by Charles P. Minning, employer, and Employers' Liability Assurance Corporation, insurer. The decision of the Industrial Accident Commission rejecting the claim for compensation was affirmed, and claimant appeals. Affirmed.

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

Michael J. Manley, of Baltimore (Harley, Wheltle & Webster, of Baltimore, on the brief), for appellant.

Walter L. Clark and Roszel C. Thomsen, both of Baltimore, for appellees.

URNER J.

The term "employment" is defined by the Workmen's Compensation Law of Maryland to mean only "a trade business or occupation carried on by the employer for pecuniary gain." Code, art. 101, § 65. The appellant was accidentally injured while working as a painter employed by the appellee on his residence then being constructed. At the trial of an appeal to the Baltimore city court from the rejection by the State Industrial Accident Commission of the appellant's claim for compensation, the evidence was held to be legally insufficient to prove that the appellee was conducting, as a trade, business, or occupation for his pecuniary gain, the building project in the course of which the appellant received his injury. An instruction to the jury to that effect is the subject of the only exception reserved for consideration on this appeal.

The appellee is the president of the Cinder Block Corporation and his residence was built with cinder blocks which the corporation manufactured. The house was erected for the appellee's use as a home, and has been occupied by him since its completion. It is located upon ground which he bought individually, and he paid for its construction with his own funds. The work was not done under a general building contract, but by mechanics whom the appellee employed. It is the only building project which he appears to have undertaken. After the home was finished, the Cinder Block Corporation published in the Baltimore Sun an advertisement picturing and describing the residence, designating it the "Cinder Block Exhibit House," commending its various new features, and its economies, comforts, and conveniences, as incident to the use of cinder blocks in its construction, and inviting the public to visit and inspect it during a specified five-day period. It was stated in the advertisement that the house belonged to the appellee and was not for sale. The appellee's purpose in using cinder blocks in the building of his home was evidently and admittedly to promote the business of the corporation of which he was president by demonstrating the advantages, and thereby stimulating the sale, of its product. But the erection of the dwelling was not a "trade, business or occupation" which the appellee "carried on" either individually or as an official of his company. The only business in which he appears to have been interested in either capacity, with a view to pecuniary gain, was the manufacture and sale of cinder blocks. The fact that he bought and used, for his own dwelling, some of the material produced by the corporation, of which he was part owner and chief executive is not sufficient to impress upon his single and private building project the character of a vocation. As a stockholder of the corporation, he may have been benefited by its advertisement of his house as an illustration of the desirability of cinder blocks for building purposes. But any pecuniary gain thus derived would be attributable to the prosecution of the corporate enterprise. It would not convert into a gainful trade, business, or occupation of the appellee such an undertaking as the building of his home.

In the case of Kelso v. Rice, 146 Md. 276, 126 A. 93, cited for the appellant, the service of the employee at the time of his injury, while different from that for which he was primarily employed, was being rendered in pursuance of a principal employment which was unquestionably within the provision of the Workmen's Compensation Act, because it was involved in an extrahazardous business conducted for pecuniary gain by the employer. The work of the appellant for the appellee in...