Congressional Country Club v. Baltimore & O. R. Co.

Decision Date10 February 1950
Docket Number85.
Citation71 A.2d 696,194 Md. 533
PartiesCONGRESSIONAL COUNTRY CLUB, Inc. v. BALTIMORE & O. R. CO.
CourtMaryland Court of Appeals

Vivian V. Simpson and Joseph B. Simpson, Rockville (Simpson & Simpson, Rockville, and Cornelius H. Doherty Washington, D. C., on the brief), for appellant.

C. W Prettyman II and D. E. Betts, Rockville (Stephen Ailes Washington, D. C., on the brief), for appellee.

Before MARBURY, C J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

HENDERSON, Judge.

This case grew out of an accident at the Dorset Avenue crossing of the Baltimore and Ohio Railroad in Montgomery County, in which a motor bus owned and operated by the Congressional Country Club, Inc., was struck by a train. Two of the passengers in the bus were killed and one was injured. It was stipulated (with reservations as to materiality) that at the time of the accident these passengers were residents of Washington, D. C., employed by the Club, and were being transported from the District line to their place of employment in Montgomery County at the employer's expense and as a part of their contract of employment. Two of them were employed as maids and one as a houseman at the Club, which is a corporation resident in Montgomery County and not doing business, or authorized to do business, in the District. At the time of the accident the Club had a policy of insurance on file with the State Industrial Accident Commission to compensate employees killed or injured in extra-hazardous employment within the meaning of the Workmen's Compensation Act, and subsequently filed reports of the accident with the Commission, at least in the case of the deceased employees. No joint election was ever filed by the Club or any of its employees, and it does not appear that claims were filed by these employees or their personal representatives.

The personal representatives of the deceased passengers, and the injured passenger, filed suits in the District of Columbia against the Railroad Company. After notice to the Club of the pendency of these suits and after requests for participation in the defense and in settlement negotiations had been declined by the Club, the Railroad Company settled the suits for the total sum of $18,500 and obtained general releases. Thereupon, the Railroad Company sued the Club in Montgomery County in separate counts for indemnity or contribution. By special plea and subsequent pleadings, in addition to its general issue plea, the Club raised the issue that it was a conforming employer and that its liability under the Workmen's Compensation Act was exclusive. The Railroad Company, in its pleadings, denied that the Club was a conforming employer and asserted that these employees were not covered by the Act.

At the trial of the case the court sustained an objection to a question put to an agent of the Hartford Accident Indemnity Company, as to whether that Company had issued a workmen's compensation insurance policy 'on the employees at the Congressional Country Club'. The appellant made a proffer that the witness would testify that all of its employees were covered, and that the premium on the policy was paid. The court said it was undisputed that the work of the employees in question at the Club was not extra-hazardous, but the dispute was as to whether 'the riding on the bus as an incident to a non-hazardous employment would bring' them 'within the purview of the Act.' The court also excluded the stipulation as to the fact that a policy had been filed with the Accident Commission, on the ground that it was immaterial, nor did he allude to the matter in his charge to the jury, which was full and explicit on other points.

The appellant likewise complains of the court's ruling in admitting in evidence the releases obtained, with the amounts stated therein. The final question raised is as to the Court's action in instructing the jury on the doctrine of last clear chance as applied to the appellant, and refusing to instruct on last clear chance as applied to the appellee. The jury's verdict was for one-half of the amount of the settlement, i. e. for contribution and not for indemnity.

The effect of the court's rulings as to the insurance policy was to remove that question from the jury's consideration and decide as a matter of law that, even if the proffered or stipulated facts were admitted, they would not support the defense raised by the special plea. The appellee does not deny that if the employees in question had been regularly engaged in extra-hazardous employment and injured or killed in an accident arising out of or in the course of that employment, and the employer had provided insurance coverage for them, this would have been a complete defense, not only in a suit by the employees, but in a suit by a joint tort-feasor for indemnity or contribution. Salvuca v. Ryan & Reilly Co., 129 Md. 235, 98 A. 675; Baltimore Transit Co. v. State, 183 Md. 674, 39 A.2d 858, 156 A.L.R. 460; Standard Wholesale Phosphate & Acid Works v. Rukert Terminals Corp., Md., 65 A.2d 304. The appellee likewise concedes that the employees in question do not fall within the exception as to 'domestic servants' under section 67(3), Article 101 of the Code. Barres v. Watterson Hotel Co., 196 Ky. 100, 244 S.W. 308; Savoy Hotel Co. v. London County Council, 1 Q.B. 665. Horowitz, Workmen's Compensation (1944 Ed.) p. 209. The appellee also seems to concede that the injuries, occurring in the course of free transportation to work, arose out of and in the course of the employment. Harrison v. Central Construction Company, 135 Md. 170, 108 A. 874; 137 Md. 256, 112 A. 627. Cf. Heaps v. Cobb, 185 Md. 372, 383, 45 A.2d 73, and cases cited. But it is earnestly contended that it is a prerequisite to liability in any case that the employee must be engaged in extra-hazardous employment, and that these employees were not so engaged. In the Harrison case supra, it was said, 135 Md. 176, 108 A. at page 876: 'Before a claimant is entitled to compensation he must show: First, that he was engaged in an extra hazardous employment, and secondly, that the injury arose out of and in the course of the employment. Both conditions must be shown.'

Section 67(1) defines 'extra-hazardous' to mean 'a work or occupation described in Section 20.' Section 20 contains a list of 47 extra-hazardous occupations, some of which are in fact hazardous, others, such as those of salesmen and musicians, not necessarily so. Subsection (41) covers 'the operation, otherwise than on tracks, * * * of cars, trucks, wagons or other vehicles.' Subsection (41A) covers, in a more limited way, resident 'truckdrivers, helpers, mechanics, loaders and other persons employed * * * in or about the operation of trucks, wagons or other vehicles.' The final subsection covers 'all extra-hazardous employments not specifically enumerated herein, and to all work of an extra-hazardous nature.' Section 67(2) defines 'employer' as one 'employing workmen in extra-hazardous employments.' Section 67(3) defines 'employee' as one 'who is engaged in an extra-hazardous employment in the service of an employer, carrying on or conducting the same upon the premises or at a plant, or in the course of his employment away from the plant of his employer.'

In Mayor and City Council of Baltimore v. Trunk, 172 Md. 35, 40, 190 A. 756, 759, it was said that an orderly in a hospital, 'if injured within the scope and course of his employment, would not be entitled to compensation merely because he was an employee, as would be the case if the hospital were either an industrial enterprise or definitely included in the operation of the Compensation Law. Boteler v. Gardiner-Buick Co., 164 Md. 478, 481, 165 A. 611. Hence, if the husband of the claimant on this record be entitled to compensation, it is because the work in the hospital of the claimant's husband is 'work of an extra-hazardous nature." It was held that his work was not extra-hazardous within the meaning of the Act.

In Mattes v Baltimore, 180 Md. 579, 582, 26 A.2d 390, 391, it was held that a janitor at a municipal airport, admittedly an extra-hazardous enterprise, was not entitled to compensation. Although there was testimony that he occasionally filled gasoline tanks or pushed planes into hangers, the court said he was 'predo...

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