Cutlip v. Lucky Stores, Inc., 952

• Decision Date: 20 September 1974
• Docket Number: No. 952,952
• Citation: 325 A.2d 432,22 Md.App. 673
• Parties: Marie F. CUTLIP et al. v. LUCKY STORES, INC., et al.
• Court: Court of Special Appeals of Maryland

Page 673

22 Md.App. 673

325 A.2d 432

Marie F. CUTLIP et al. v. LUCKY STORES, INC., et al.

No. 952.

Court of Special Appeals of Maryland.

Sept. 20, 1974.

Certiorari Denied Dec. 2, 1974.

William J. Rowan, III and James A. Sullivan, Rockville, with whom were Heeney, McAuliffe & Rowan, McInerney, Layne & McCormick and Edward B. Layne, Jr., Rockville, on the brief, for appellants.

David A. Levin, Langley Park, with whom were Jacob S. Levin and Levin & Levin, Langley Park, on the brief, for Lucky Stores.

Argued before ORTH, C. J., and THOMPSON, and LOWE, JJ.

LOWE, Judge.

The gambling instinct endemic to our former frontier society has been replaced by a quest for security with which our contemporary society is identified. Even at law society is inclined toward certainty of result, not infrequently at the expense of unsurfeited recovery. Workmen's Compensation, mandatory insurance programs and the trend toward no-fault insurance are but weathervanes of that direction. Even the 'plea bargain' in criminal law has as its genesis the desire for a secure result for both the State and defendant in place of the element of chance inherent in a trial.

In retrospect, however, the hazards of a trial are foregotten, and thoughts of 'what might have been' give heart to injured litigants who seek deeper pockets from which to make themselves whole. Pressed by those they represent, members of the legal profession during recent decades have more carefully perused disaster's peripheries for contributing acts or omissions by professionals whose conduct might not measure up to an accepted standard. That lawyers have not shunned their brethren in this pecuniary pursuit is small solace to appellee MacDonald and Englehardt, an architectural firm (hereafter referred to as Englehardt) or its principal Lucky Stores, Inc. (to whom we shall allude as owner ¹ or Lucky), a California based corporation which retained Englehardt to design and supervise the construction of a department store in Prince George's County.

Robert Lee Cutlip, a twenty-eight year old iron worker was killed on the job in the course of erecting the steel structure for the store when a portion of the nearly completed building collapsed. Mr. Cutlip was employed by Abbott Steel Erectors, Inc., the structural steel subcontractor on the job. Workmen's Compensation provided his widow and children with a recompense of sorts. That limited recovery ($70 per week up to a miximum of $27,500.00) is the exculsive remedy against the employer, Abbott Steel Erectors, Inc., as well as against Kettler Brothers the general contractor. Thus restricted by the Act, Mr. Cutlip's widow and children seek additional succor from Lucky and Englehardt through an action for the wrongful death of the husband and father. ²

Lucky had intended to have erected a 'Memco' department store on the construction site. It engaged Englehardt to furnish plans acceptable to it and to the local authorities. Although the contract called for periodic inspection and supervision it did '. . . not constitute continuous personal supervision of construction as obtained by the employment of a clerk-of-the-works.' ³ Lucky contracted with Ketter Bros. to build the store for which Englehardt had provided the plans and specifications. Those plans and specifications had been prepared by a structural engineer, Peter J. Caffes, whom Englehardt retained for that purpose. Englehardt did not turn over the responsibility for the inspection and supervision of the structure to Caffes, however. He retained it for himself.

Appellants attempt to hold the owner responsible through the architect for the death of Mr. Cutlip by taking us down one or all of three paths, each of which they contend arrives at their desired destination. The terminus they seek is marked by the maxim respondeat superior, let the master answer. More aptly interpreted, that apothegm means that a master is responsible under certain circumstances for the acts of his servant or the principal is responsible for the acts of his agent within the scope of his employment.

A contrary rule often viewed as an exception to that of respondeat superior, is that the employer of an independent contractor is not subject to liability for bodily harm caused to another by a tortious act or omission of the independent contractor. This aphorism has had appended to it some twenty exceptions, each of which would lead the appellants to their desired goal, of holding Lucky responsible for the death of Mr. Cutlip.

To accomplish that purpose appellants must either establish that the architect Englehardt was an agent (servant) of Lucky or, failing that they must bring Lucky within one of the exceptions to the independent contractor rule. See, Restatement of Torts, 2nd, §§ 410-429. Appellants assert only two of those exceptions as applicable here. One is expressed in Le Vonas v. Acme Paper Board Co., 184 Md. 16, 40 A.2d 43, and the other brought to us in the language of the Restatement of Torts, 2nd, § 416, the principle of which is discussed in Weilbacher v. Putts Co., 123 Md. 249, 91 A. 343.

None of appellants' three approaches has convinced us.

Agency

The distinction between an independent contractor and a servant is not easily made, in part because neither term is capable of exact definition. The master-servant relation is encompassed by the generic concept of principal-agent, but is unique in that the master exercises considerably more control over the activity of his servant than does the ordinary principal over his agent. There may be agents for example, who agree only to use care and skill to accomplish a result without subjecting themselves to control by or obedience to the principal in the manner of accomplishing that result. ⁴ In that situation, although a principal-agent relation may be said to exist, the control and supervision peculiar to the master-servant relation are absent, and thus the principal is ordinarily not subjected to the liability that would be imposed on a master for the tortious conduct of a servant within the scope of his employment.

Similarly, an independent contractor-whether or not an agent-agrees only to accomplish physical results. Thus in distinguishing an indenpendent contractor from a servant, the quantum of the owner's retained control and supervision is the determinative factor.

Whatever we choose to call the architect, the purpose of our inquiry is to determine whether upon employing him, Lucky had the right to control the details of his movements during his performance of the business agreed to do. Greer Lines Co. v. Roberts, 216 Md. 69, 82, 139 A.2d 235; Gallagher's Estate v. Battle, 209 Md. 592, 602, 122 A.2d 93; Globe Indemnity Co. v. Victill Corp., supra, 582, 119 A.2d 423. Unless Engliehardt's allegedly negligent actions were done in a manner directed or authorized by Lucky liability does not attach. 1 Restatement of Agency, § 250. The key element of control, or right to control '. . . must exist in respect to the very thing from which the injury arose.' Gallagher's Estate v. Battle, supra, 209 Md. 602, 122 A.2d 98.

Our inquiry then narrows to the question of what evidence was introduced by appellants indicating control by Lucky of the manner in which Englehardt performed his work. The burden of proving this agency relationship is clearly appellants'. P. Flanigan & Sons, Inc. v. Childs, 251 Md. 646, 655, 248 A.2d 473. Appellants suggest three possibilities to show they have met that burden.

Their first contention on the question of agency hinges upon a clause in the contract which stated that the contract would be controlled by the principal place of business of Lucky, i.e., California. They contend that adoption of foreign law by contract has the same effect as its adoption by rule of law. Appellants then state that because they relied on a reference in the American Jurisprudence encyclopedia, that an architect supervising construction is usually acting as an agent of the owner, which cited a California case as authority in the supplement, they were relieved of the Maryland burden of proving agency.

But appellants failed to comply with the requirement of Md.Code, Art. 35, § 50 requiring reasonable notice to adverse parties of an intent to rely on foreign laws nor did they assert such intent in their pleadings. Neither did appellants submit to the trial court evidence of the foreign law nor ask that judicial notice be taken of the law they would rely upon. It is certainly not enough that appellants sought to rely on the substance of an encyclopedic statement which incidentally cited in a footnote a California case. ⁵ The point not having been mentioned to the court below, let alone tried and decided, will not now be entertained. Md. Rule 1085.

Appellants next two arguments on the agency concept are presented in their entirety:

'Aside from the stipulated reliance on foreign law, the jury could have found an agency relationship based on Englehardt's almost daily contact with Lucky together with the elements of control present in the written contract. Appellee-Englehardt's own expert architect testified he could not imagine such frequent contact, and that it was unheard of. From these facts, the jury could have reasonably found that Englehardt was the agent of Lucky.'

We can dispose of them as summarily as they were presented. The contract between Englehardt and Lucky contains not a single indication of control retained by Lucky over the areas of responsibility assigned to Englehardt. To the contrary, it shows Lucky's total reliance on Englehardt not only to provide the plans and specifications but to protect Lucky's interests vis a vis the contractor as well. Each duty charged to Englehardt is couched in terms granting him absolute discretion save only the '. . . approval of various colors, finishes and textures . . .,' which Lucky preserved to itself. Even then the architect is required to 'assist the OWNER in (their)...