L & S Const. Co. v. State Acc. Fund

• Decision Date: 24 November 1959
• Docket Number: No. 68,68
• Citation: L & S Const. Co. v. State Acc. Fund, 155 A.2d 653, 221 Md. 51 (Md. 1959)
• Parties: L & S CONSTRUCTION COMPANY, Inc., et al. v. STATE ACCIDENT FUND and Weygandt Engineering & Construction Co.
• Court: Maryland Court of Appeals

Page 51

221 Md. 51

155 A.2d 653

L & S CONSTRUCTION COMPANY, Inc., et al. v. STATE ACCIDENT FUND and Weygandt Engineering & Construction Co.

No. 68.

Court of Appeals of Maryland.

Nov. 24, 1959.

Robert A. Amos, Baltimor, for appellant.

John W. Mitchell, Sp. Atty., Upper Marlboro (C. Ferdinand Sybert, Atty. Gen., and J. Howard Holzer, Sp. Atty., Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

L. & S. Construction Company, Inc. (L & S) and its insurer, Globe Indemnity Company, appealed to the Circuit Court for Prince George's County from a decision of the Workmen's Compensation Commission. The Commission held that one George R. Addison, who was fatally injured in the course of his work, was an employee of L & S only, and not of Weygandt Engineering & Construction Company (Weygandt), or of both L & S and Weygandt, and made an award of death benefits accordingly. The case was heard in the Circuit Court by Judge Marbury, sitting without a jury. The Circuit Court affirmed the order of the Commission and L & S and its insurer appealed to this Court. Liability for payment of Workmen's Compensation benefits is conceded. The appellees are Weygandt and its insurer.

The question is whether the decedent was at the time of his fatal injury an employee of L & S, of Weygandt, or of both, within the meaning of the Workmen's Compensation Act, Code 1957, art. 101, § 1 et seq. Who is liable for the payment of the death benefits award, of course depends on the answer to this question.

The case is submitted to us by stipulation of counsel on an agreed statement of facts, pursuant to Rule 828 g of the Maryland Rules, and on the opinion and order of the Circuit Court. This Court expresses its appreciation to counsel for both sides for the succinctness of this presentation. The agreed statement (omitting three paragraphs, the contents of which have already been sufficiently covered) is as follows:

'On May 4, 1957, George R. Addison was fatally injured on a job site of Weygandt * * * when a tractor operated by him and owned by L & S * * * overturned. At the time the tractor was pulling a sheep's foot roller owned by Weygandt.

* * *

* * *

'L & S was engaged in road construction. Weygandt, at the time of the accident, was doing work involving earth moving under a contract between it and the Washington Suburban Sanitary Commission in Brentwood, Prince George's County, Maryland. L & S was not involved in that job except to furnish a tractor and an operator thereof under the following circumstances:

'Smith Asphalt (A. H. Smith) an owner of L & S required the use of a loader owned by Weygandt and in exchange for the use of the loader by Smith, L & S was told by Smith to furnish a tractor and operator to Weygandt.

'The tractor could be operated only by an employee of L & S. Weygandt had the right to remove the operator of the tractor from the job at any time, but not to put one of its employees on the tractor. It had the right to request L & S to furnish another operator for the tractor.

'The operator of the tractor reported to a foreman of Weygandt and the foreman signed tickets showing the number of hours the tractor and operator worked on Weygandt's job and in turn, L & S would bill Smith Asphalt (A. H. Smith) who paid L & S.

'Smith owed Weygandt for the use of a loader and this obligation was being discharged by Smith by his payments to L & S for Weygandt's use of the tractor.

'L & S was not in [the] business of renting equipment. It had, however, rented equipment before on occasion.

'Weygandt controlled the actual operation on the job and the only instruction given to the operator of the tractor by L & S was to report to Weygandt's foreman. At the end of the day's work the tractor would remain on the job site and in the mornings the operator would report to the job site.

'It was contemplated that Weygandt had the right to use the tractor until it had completed the particular job.

'The tractor operator, Addison, was hired by L & S. He was paid by L & S. L & S also deducted taxes and social security from Addison's pay and provided Workmen's Compensation Insurance for him.

'* * * [T]he operator, Addison, was furnished for the specific purpose of operating the tractor owned by L. & S. Construction Company, Inc.'

In Sun Cab Co. v. Powell, 196 Md. 572, 577, 77 A.2d 783, 785, where the question was whether the injured employee was an employee of one employer or another, the Court said: '[T]he rules for determining the existence of the relation of employer and employee under the [Workmen's Compensation] Act are the same as the rules at common law for determining the relation of master and servant.' See also Charles Freeland and Sons, Inc. v. Couplin, 211 Md. 160, 126 A.2d 606, and Snider v. Gaultney, 218 Md. 332, 146 A.2d 869, each of which was a Workmen's Compensation Act case involving the question whether the worker was an employee or an independent contractor. In each the common-law rules to determine the question of employer-employee relationship were applied.

'[T]he decisive test in determining whether the relation of master and servant exists is whether the employer has the right to control and direct the servant in the performance of his work and in the manner in which the work is to be done.' Sun Cab Co. v. Powell, supra, 196 Md. 578, 77 A.2d 785. It is not impossible, as that case recognized, to make a contract under which the power to hire or discharge would be in one person and the power of control in another, and that in such case the person having the power of control would be the master. The general rule as to control was recognized in Baltimore Transit Co. v. State, to Use of Schriefer, 184 Md. 250, 265, 40 A.2d 678, and the rule as stated in the Sun Cab case has been restated or recognized in a number of recent cases in this Court: Charles Freeland and Sons, Inc. v. Couplin, supra, 211 Md. at page 169, 126 A.2d at page 611; W. J. Dickey & Sons, Inc. v. State Tax Comm., 212 Md. 607, 612, 131 A.2d 277; Keitz v. National Paving and Contracting Co., 214 Md. 479, 491, 134 A.2d 296, 136 A.2d 229; Snider v. Gaultney, supra, 218 Md. at page 337, 146 A.2d at page 871. See also Stem v. Nello L. Teer Co., 213 Md. 132, 139-140, 130 A.2d 769.

Several criteria have been developed for use in applying the general rule. The Sun Cab case lists these four: (1) the selection and engagement of the servant; (2) the payment of wages; (3) the power of dismissal; and (4) the power of control of the servant's conduct (196 Md. 577-578, 77 A.2d 784-785). Keitz v. National Paving and Contracting Co., supra, 214 Md. at page 491, 134 A.2d at page 301 adds a fifth test to those just stated, which is '(5) * * * whether the work is a part of the regular business of the employer.' The Keitz case then goes on to state that none of these indicia, excepting the fourth, standing alone, seems controlling. The Sun Cab case recognizes that the power to hire and discharge is not necessarily vested in the person having control. The Keitz opinion also points out, citing the Sun Cab and Freeland cases, that 'it is not the manner in which the alleged master actually exercised his authority to control and direct the action of the servant which controls, but it is his right to do so that is important.' 214 Md. at page 491, 134 A.2d at page 301.

Cases presenting the question as to which of two employers--the 'general' employer or the 'special' employer, as they are sometimes called--is to be regarded as the employer of an employee in a given situation, have frequently involved vehicles and drivers furnished by the general employer to someone else. The same general principles which apply in the vehicle cases also apply in others. Thus, in Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480, the question of control was held decisive where the question was whether a winchman was the employee of the owner of the winch and of the dock on which it was situated, who was his general employer, or of a stevedore engaged in loading a ship alongside the dock. The winchman was being directed as to the actual operation of the winch by the stevedore's foreman. The holding there was that the winchman remained the servant of his general employer. See also Stem v. Nello L. Teer Co., supra, where there was a possible question as to whether a road flagman was an employee of the general contractor on a road construction job or of a subcontractor hauling dirt for the general contractor. There, too, the question of control was regarded as decisive.

The cases are often broken down into 'loan' or 'borrowing' cases and 'hiring' cases, and it is said that the 'principles governing the one do not apply altogether to the other, for the scope of the servant's employment is a distinguishing factor.' Baltimore Transit Co. v. State to Use of Schriefer, supra, 184 Md. at page 268, 40 A.2d at page 687. As that case also points out, a 'borrowing' or 'loan' case is one in which the owner loans or transfers, on a gratuitous basis, his vehicle with driver, and a hiring case is one where as a part of his business, the owner hires them to another. The present case may not fit completely into the standard pattern of either category. The tractor and driver were not furnished gratuitously, for Weygandt paid for them through crediting Smith's account for the payments which Smith made to L & S. On the other hand, it was not a regular part of the business of L & S to rent out equipment, though it occasionally had done so. Yet, the type of work which Addison was to perform for Weygandt was of a type which he was employed to do for L & S. Whether this case falls within one classification or the other does not seem to be necessarily of controlling importance, for we think the result would be the same either way. As was said in the Baltimore Transit case, 184 Md. at pages 265-266, 40 A.2d...