Keene v. Insley

• Decision Date: 02 May 1975
• Docket Number: No. 411,411
• Citation: 26 Md.App. 1,337 A.2d 168
• Parties: Clarence KEENE and Clinton Pearson, t/a Pearson & Keene Dock Builders et al. v. Harold Roland INSLEY.
• Court: Court of Special Appeals of Maryland

Page 1

26 Md.App. 1

337 A.2d 168

Clarence KEENE and Clinton Pearson, t/a Pearson & Keene Dock Builders et al. v. Harold Roland INSLEY.

No. 411.

Court of Special Appeals of Maryland.

May 2, 1975.

Lloyd A. Dreiling, Baltimore, with whom was David D. Patton, Baltimore, on the brief, for appellants.

No appearance or brief filed for appellee.

Argued before MORTON, DAVIDSON and LOWE, JJ.

DAVIDSON, Judge.

On 16 May 1970 the appellee, Harold Roland Insley (claimant), sustained serious burns and injuries at the home of Orville Pritchett when he attempted to burn a pile of brush which was preventing him from cutting the grass. On 29 May 1970 he filed a claim for compensation with the Workmen's Compensation Commission (Commission) against the appellants, Clarence Keene and Clinton Pearson, T/A Pearson & Keene Dock Builders (partnership), and Selected Risks Insurance Company, its insurance carrier (insurer). On 14 August 1970, after a hearing, the Commission found that the partnership was not the employer of the claimant at the time of the alleged injury and that the claimant did not sustain an accidental injury arising out of and in the course of employment. The Commission disallowed the claim for compensation.

The claimant filed an appeal in the Circuit Court for Dorchester County. After a de novo hearing held on 8 April 1974, a jury, presided over by Judge C. Burnam Mace, found that the partnership was the claimant's employer at the time of his injury and that he did sustain an accidental injury arising out of and in the course of his employment. On 26 April 1974 the partnership's motion for judgment n. o. v. was denied. It is from this order that the partnership appeals. Here the partnership's sole contention is that the evidence was insufficient to submit to the jury the questions of whether the partnership was the employer of the claimant at the time of the alleged injury and, if so, whether the claimant sustained an accidental injury arising out of and in the course of his employment.

In this case the evidence was sharply disputed. Viewed in the light most favorable to the claimant, however, the facts are as follows. ¹ The appellant was employed by the partnership for several years before his accident on 16 May 1970. Both partners had the right to control and direct his activities. The claimant testified that his duties included 'whatever they'd tell me to do . . . whenever they needed me.' His regular duties included helping to building piers, bulkheads, dikes, boat ramps and duck blinds. He would drive pilings, go into the woods to cut logs for pilings which he would then haul out, stack lumber, hammer nails, bore holes, cut bolts and saw boards. On occasion, when directed so to do by Mr. Keene, he would cut the grass at Mr. Keene's garage. Most of this work was performed on Monday through Friday but because the partnership work depended upon the weather the claimant frequently was unable to accrue 40 hours of compensable work during such a five day period. Often when he did not 'make his hours' the claimant would be asked to perform such services as cutting and hauling logs from the woods or cutting grass at Mr. Keene's garage on Saturdays.

The claimant was paid on an hourly basis at the rate of $2.25 per hour, by a partnership check issued to him on Fridays. No records of the number of hours worked by the claimant were kept either by him or the partnership. Clarence Keene, who mentally logged the number of hours of work performed by the claimant, would issue a partnership check which showed the total amount of money paid to the claimant, but did not show the number of hours worked. These checks were, in turn, looked at and signed by Clinton Pearson, the other partner, who knew 'how much time he (the claimant) made.' The amount of the checks would then be forwarded to an accountant for payroll and bookkeeping purposes. When the claimant worked on a Saturday the number of working hours then accumulated would be carried over to the ensuing week. The claimant would be paid by a partnership check issued the following Friday.

At one time Clarence Keene had operated commercially the garage which he owned. Since the formation of the partnership approximately eight or nine years previously, he utilized the garage solely for repairing motors as an accommodation to friends and as a social gathering place. The garage belonged solely to Keene, was not located on partnership property nor connected with partnership business in any way except for the possible storage of 'some bolts, nails, things like that, cable.' A number of men in the community regarded the garage as a 'hangout' where at various times they would assemble to fish nearby, cook meals and drink beer.

On 16 May 1970 the claimant's son, Carl Insley, picked his father up at his father's home and drove him to Keene's garage arriving at about 9 a. m. The claimant's son began to repair a malfunctioning motor. A number of men, including Keene, were present. At some point in time the claimant's son informed Keene that in order to complete the repair it was necessary to have gaskets 'to finish the motor up.' Keene told a man named Orville Pritchett who worked at an auto repair shop that he wanted him to go get the gaskets. Pritchett refused, saying that he had to go home and cut his grass. At this juncture the claimant started to leave in order to go down the road and get some beer. According to the claimant, Keene called him back and told him 'to go down and help Orville.' The claimant got into Pritchett's car and went with him, fully expecting, based upon his past experience in being paid for cutting Keene's grass on Saturday, to be paid by the partnership. As stated by the claimant, '. . . Mr. Keene is the one that paid me-he is the one that sent me.'

Upon arriving at Pritchett's house the claimant began to cut the grass with a power mower which shortly ran out of gas. As the claimant and Pritchett were getting ready to refill the lawn mower they decided to burn a big pile of brush which was 'in the way of cutting the grass.' Pritchett poured some gasoline on the brush; then the claimant threw a match into the pile to ignite it. The pile of brush 'blew up' from eight to 12 feet. As a result the claimant suffered serious burns and other bodily injuries.

At the hospital, Clarence Keene assured the claimant's daughter that she did not 'have a thing to worry about .. . that Orville (Pritchett) had a homeowners policy and if it didn't cover it (the medical expenses), that he had sent my father, that he would put him on his insurance.' The claimant was never compensated for the work performed on the day of the accident either by the partnership or by Keene. ²

The partnership and insurer contend that the evidence was insufficient to sustain the jury's findings. They maintain that, even when viewed in the light most favorable to the claimant, the evidence establishes that at the time of his injury the claimant, as a result of an unauthorized direction from one of the partners, was performing services for a third party, which were not a part of his regular duties and which were of personal benefit to the assigning partner rather than to the partnership's business. They assert that under such circumstances the claimant was not an employee of the partnership at the time of his injury, and that his injury did not arise out of and in the course of his employment.

The question of whether a claimant, directed by a person in authority to do work outside his normal duties for the private benefit of his superior is an employee acting within the scope of his employment has not previously been answered in Maryland. In 7 Schneider's Workmen's Compensation, § 1660(a) (3d Ed. 1950) it is stated:

'An employee who, as a voluntary accommodation to his employer or to another, performs services outside the scope of his employment, is not within the act while performing such services. * * * But an employer may enlarge or extend the scope of the employment and an employee who, at the direction of his employer or of his superior to whose orders he is subject, performs services outside the duties of his usual employment, and performs them in consequence of the existence of the relation of employer and employee, and as incidental to the employment, is within the protection of the act while performing such services. * * * Where an employee performs services for a third party by direction of his employer, if the relation of employer and employee continues to exist between them during the period of such services, the employer is liable under the compensation act for injuries sustained by the employee while performing the task so assigned to him although he may be under the control of the third party as to the details of the work.'

Similarly, 1 Larson's Workmen's Compensation Law, § 27.40 (1972) states:

'When any person in authority directs an employee to run some private errand or do some work outside his normal duties for the private benefit of the employer or superior, an injury in the course of that work is compensable.

'The technical reason for these holdings is that, whatever the normal course of employment may be, the employer and/or his supervisory staff have it within their power to enlarge that course by assigning tasks outside the usual area. If they do not assign these tasks on the strength of the employer-employee relation on which compensability depends, then what is the source of authority by which the task is assigned?

'The practical reason for the rule is that any other view places the employee in an intolerable dilemma: if he complies with the order, he forfeits compensation protection; if he does not comply, he gets fired.

'Tested by these single arguments, the early cases denying compensation seem wrong.'

Again it is said in 58 Am.Jur., Workmen's Compensation, § 231, p. 738 (1948):

'According to many authorities, however, the employee is entitled to...