Egypt Farms, Inc. v. Lepley

• Decision Date: 08 June 1981
• Docket Number: No. 1505,1505
• Citation: 49 Md.App. 171,430 A.2d 122
• Parties: EGYPT FARMS, INC. et al. v. Lorraine S. LEPLEY.
• Court: Court of Special Appeals of Maryland

Page 171

49 Md.App. 171

430 A.2d 122

EGYPT FARMS, INC. et al. v. Lorraine S. LEPLEY.

No. 1505.

Court of Special Appeals of Maryland.

June 8, 1981.

R. Roger Drechsler, Baltimore, with whom were Lord, Whip & Green, P. A., Baltimore, on the brief, for appellants.

Peter V. Gargano, Baltimore, for appellee.

Argued before LOWE, LISS and WILNER, JJ.

WILNER, Judge.

The precise question before us in this appeal is whether the Circuit Court for Baltimore County erred in affirming a decision of the Workmen's Compensation Commission by means of summary judgment. At issue is not only the substantive correctness of the court's findings that Maurice Lepley's death by asphyxiation arose out of and in the course of his employment and was not the product of willful misconduct on his part but also whether those findings could properly be made by means of summary judgment.

We have no particular difficulty with the first issue; following an evidentiary proceeding of the type provided for by Md.Ann.Code art. 101, § 56, the court could properly have reached the conclusions noted. We think, however, that it erred in reaching one of those conclusions on summary judgment, for there was evidence in the record (and permissible inferences from that evidence) that could have led to a conclusion that Mr. Lepley's death did not arise out of and in the course of his employment.

The record upon which the court granted summary judgment was that made before the Commission. No additional evidence was considered.

Mr. Lepley was employed by Egypt Farms, Inc. as a mechanic. His "main work," according to his widow, the claimant-appellee, was "cooking topsoil," although it was undisputed that "(h)e worked every kind of work there was to do. He did everything. He did mechanic work." He started up the employer's trucks in the morning, and kept them in repair. He occasionally worked on his "boss's" car, the boss's daughter's car, and the secretary's car, all at the employer's garage.

Mr. Lepley had an old pick-up truck that he used regularly to commute to and from work. ¹ Indeed, it was this truck, and his manner of using it, that forms the heart of this controversy.

It was conceded that Lepley occasionally used his truck in the direct service of his employer. He was not required so to use it, but he did so in a number of ways with his employer's knowledge and consent. On one occasion, shortly before his death, he used his truck on a business trip to Virginia. More frequently, he used it either to reach the scene of one of his employer's vehicles that had broken down on the road or simply to travel around the "yard," although there were company vehicles he could have used for either purpose. Because of his periodic use of the truck at work, he kept his tools those that he used in his work in his truck. According to Mrs. Lepley, the employer supplied him with some gasoline and some parts for the truck.

Mr. Lepley used his employer's garage to work on i. e., repair his truck. Mrs. Lepley said that it was "the only place he had to work on it," but, in any event, there was no dispute that the employer knew and acquiesced in Lepley's use of its garage for that purpose.

Lepley's work schedule was somewhat erratic. According to his widow, "(h)e worked from 6:00 in the morning sometimes until 11:00 or 12:00 at night depending on how busy they were at the particular time." It was a seasonal business, she said, and he was then in the busy season. She stated that "(h)e was on call all the time. Anytime they needed him they could call him, Saturday, Sunday, nights, anytime at all he would go." Because of that, Mr. Lepley had a key to the employer's property.

The facts related so far were essentially undisputed. The problem arises from the circumstances surrounding Mr. Lepley's death.

He died sometime between the evening of Saturday, May 12, 1979, and the next morning. Mr. Lepley had worked that Saturday. According to Mr. Strickland, the president and owner of Egypt Farms, he and Lepley had been working since 6:00 or 6:30 a. m. He last saw Lepley "in the back of the shop" at about 5:00 or 6:00 p. m. The work day was over, he said, and they were "discussing what we were going to do next week and it was a hot sunny afternoon we all had a beer." Strickland emphasized the beer drinking in the context of his assertion that the work day had ended:

"A That was one of the ... of the very important things that we stressed there was that we knew when quitting time was because you could hear Maurice (Lepley) popping a beer.

Q Was any drinking allowed on the premises during work hours?

A Absolutely not.

Q Why was that, sir?

A Well, you don't mess around with equipment when you're drinking and you can't work properly when you're drinking."

Where the beer came from is not entirely clear. There was testimony from a barmaid at a nearby tavern that Mr. Lepley had been there earlier that afternoon about 4:30 p. m. that he drank two bottles of beer and bought a "six pack" to go. It was argued that her testimony, particularly as to the time of Mr. Lepley's visit, was inconsistent with other testimony that Lepley was at work until 5:00 or 6:00 p. m. Inferences could be drawn either way, of course that she was mistaken as to the time and that Lepley was there later, or that Lepley simply left work temporarily and returned prior to his last conversation with Mr. Strickland. There was a refrigerator at the shop in which the men kept beer. Occasionally, Mr. Strickland would buy some beer for the men.

It is apparent that Mr. Lepley remained at or returned to the shop after Strickland and the others left, but different inferences could be drawn as to why. He was found the next morning by a co-worker lying on a "creeper" behind his truck, dead. The garage door was closed; his entire box of tools was beside him. According to the autopsy report, he had died of carbon monoxide intoxication. One clearly permissible inference, of course, was that Mr. Lepley had died while working on his truck; and that is what the medical examiner assumed. Mr. Strickland, however, found it "a little unusual that (Lepley) would crawl under a truck with an entire box of tools. Maurice was such a good mechanic he would generally know about what he needed. And to go under ... he'd take just a few tools with him, exactly what he needed." Strickland believed (and testified) that Lepley had "c(o)me in there to sleep off a drunk...." ²

On these facts, the Commission found that Lepley's death had arisen out of and in the course of his employment and that it was not the product of willful misconduct on his part. ³ On appeal, the court concluded that there was no dispute of fact and the record permitted "only one permissible inference" that the Commission reached the only possible conclusion. On that basis, it granted appellee's motion for summary judgment.

In Montgomery Ward & Co., Inc. v. Bell, 46 Md.App. 37, 415 A.2d 636 (1980), we discussed the role of a court when reviewing a decision of the Workmen's Compensation Commission. At p. 42, 415 A.2d 636, we noted that where, as here, the case involves an accidental injury, "the court must determine three things: (i) did the Commission justly consider all the facts concerning the injury; (ii) did the Commission exceed its statutory authority; and (iii) did the Commission misconstrue the facts of the law applicable to the case?" We also observed, however (p 41, 415 A.2d 636), that in making those determinations, the reviewing court has very broad authority, notwithstanding the prima facie correctness of the administrative decision. This review, said the Court in Maryland Bureau of Mines v. Powers, 258 Md. 379, 382, 265 A.2d 860 (1970), "extends both to findings of fact and applicable law" and "provides for a trial which is essentially de novo." The court (or jury), in other words, is not so bound by the Commission's fact findings as is normally the case in administrative appeals, but is free to weigh the evidence (and the inferences from it) and reach entirely opposite conclusions. Thus, the normal rules governing summary judgment apply with equal force to Workmen's Compensation appeals. Those rules were recently summarized in Peck v. Baltimore County, 286 Md. 368, 381, 410 A.2d 7 (1979) (citations omitted):

"We have said many times that the function of a summary judgment proceeding is not to try the case or to attempt to resolve factual issues, but to ascertain whether there is a dispute as to a material fact sufficient to provide an issue to be tried.... Moreover, all inferences must be resolved against the moving party when a determination is made as to whether a factual dispute exists, even if the underlying facts are undisputed.... Also, (citing Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138, 265 A.2d 256 (1970)), '(E)ven when the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact.' " (Emphasis supplied.)

This is the framework within which we must review the court's action. Within that framework, it is clear that the court could properly conclude, on summary judgment, that Lepley's death was not the result of his own willful misconduct. At best, applying every inference in favor of the employer, the record supports nothing more than negligence on Lepley's part. He should have known better than to run the motor in a closed garage without proper ventilation, or, (if that is what he was doing) to work on the vehicle after drinking. But, as we said in Williams Construction Co., Inc. v. Garrison, 42 Md.App. 340, 345, 400 A.2d 22 (1979), "the right to compensation exists without reference to the care of the employee, and compensation is not denied by reason of contributory negligence on his part." See also Dayton v. Davis, 218 Md. 614, 147 A.2d 699 (1959); Harris v. R....