Lupton v. McDonald

Decision Date01 March 1966
Docket NumberNo. 214,214
Citation241 Md. 446,217 A.2d 262
PartiesThomas William LUPTON v. C. J. McDONALD.
CourtMaryland Court of Appeals

Ernest V. Wachs, Hagerstown, for appellant.

John S. Hollyday and Bruce C. Lightner, Hagerstown, for appellee.



This case under the Workmen's Compensation Act turns on the question of whether the appellant, Thomas W. Lupton (Lupton) was a casual employee. Lupton was seriously injured on February 12, 1964 while working for Carl A. Milburn (Milburn) who was under contract to cut trees for the appellee, Clifton J. McDonald (McDonald). Lupton filed a claim with the Workmen's Compensation Commission against McDonald claiming that McDonald was his employer within the meaning of the Act. After a hearing, the Commission found that Lupton was not an employee of McDonald and denied the claim. Lupton appealed to the Circuit Court for Washington County. The appeal was determined on the record of the proceedings before the Commission and Judge Rutledge affirmed the Commission's decision on the ground that Lupton was a casual employee at the time of the accident.

In this appeal, Lupton contends that he was not a casual employee and that Milburn was a subcontractor of McDonald which gives Lupton the right to recover from McDonald, the principal contractor. McDonald contends that Milburn was an independent contractor and not a subcontractor; that Lupton was a casual employee within the meaning of the Act; and that he, McDonald, is exempted from the provisions of the Act under Code (1964 Repl. Vol.) Article 101, Section 67(3) because he had workmen's compensation insurance in West Virginia which covers his employees while in Maryland so that Lupton's sole remedy is under the West Virginia law. Milburn is not a party to the litigation; it appears from Judge Rutledge's opinion that he had no workmen's compensation insurance.

The material facts are not in dispute. McDonald, with an office in West Virginia, conducted a tri-state logging and sawmill business. His operations took him into Maryland and Virginia as well as West Virginia. He had a contract to cut timber on a tract of land containing about thirty-five trees near Emmittsburg, Maryland. Since the early part of January, 1964, he also had a contract with Milburn wherein Milburn agreed to cut timber for McDonald at $5 per thousand feet. Milburn's sole obligation under the agreement was to cut the trees to the ground and top them; McDonald's men would then drag them to the hauling trucks.

In January, 1964, Milburn began to perform his contract alone, then he hired Jimmy Marx, a logger, who worked for him about two weeks at $10 or $11 a day. Marx then left Milburn's employment. Milburn called Lupton, also a logger, 'to help clean up this one particular place.' Milburn stated before the Commission that he did not know whether Lupton would have worked for him the day following Lupton's accident since there were no plans, nor were there arrangements as to pay, although he gave Lupton $30 after the accident. Milburn testified that 'we would have finished out that tract the day that we went over there because there was only seven trees there.'

Lupton testified that he was called by Milburn to help him cut timber, that there was no agreement as to pay and that he drove his own truck to the job in Maryland from his home in Virginia. He also stated that he was hired only 'to help finish the job' on that particular tract of land, that 'there was possibly a day's work up in there where we was at in the stand, I mean to finish this,' and that he had never worked for Milburn before. Lupton had no dealings with McDonald in connection with the job. Lupton was injured when a limb of a tree that Milburn was cutting struck Lupton's leg and knocked him over a hill.

In Clayburn v. Soueid, Inc., 239 Md. 331, 211 A.2d 728 (1965), which also involved the question of whether a claimant under the Act was a casual employee, we reviewed the prior decisions of this Court on the subject. We said:

'This Court has had a number of cases before it involving the question of whether or not the particular employment involved was casual. We have pointed out that the Workmen's Compensation Act does not define the term 'casual' as therein used to describe one of the classes of employees to whom the Act is not intended to apply [Code 1957, Art. 101, § 67(3)], and that, in the absence of a statutory definition, the application of the term should be made in each case according to the particular facts presented. Hygeia Ice & Coal Co. v. Schaeffer, 152 Md. 231, 238, 136 A. 548 (1927); State Accident Fund v. Jacobs, 134 Md. 133, 134, 106 A. 255 (1919). 'Casual,' as used in the Act, 'is a word of indefinitely varied import.'

Moore v. Clarke, 171 Md. 39, 52-53, 187 A. 887, 893, 107 A.L.R. 924 (1936).

'Nevertheless, criteria have been developed, in our Court and in other jurisdictions which have similar statutes, to which we have given weight in determining whether an employment is casual or regular. These criteria include the nature of the work, the duration of the employment, and whether it is occasional, incidental, or a usual concomitant of the employer's business. Moore v. Clarke, supra, at 53 and authorities therein cited.

'Where the terms and manner of employment are disputed and different inferences may be drawn therefrom, the issue as to the relation that existed between the parties is a mixed question of law and fact, to be determined by the trier of the facts, under proper instructions, Hygeia Ice & Coal Co. v. Schaeffer, supra, but where the essential terms and manner of employment are undisputed, the question is one of law for the Court.'

In this case, the essential terms and manner of employment are undisputed. We agree with Judge Rutledge that, as a matter of law, Lupton was a casual employee. The nature of the work was temporary, the duration of the employment was only for a day, and it was occasional and incidental.

In Clayburn, the...

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  • Whitehead v. Safway Steel Products, Inc.
    • United States
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    ...for the Tavel standard, Thompson v. Paul C. Thompson & Sons, 258 Md. 391, 394-95, 265 A.2d 915, 917 (1970); Lupton v. McDonald, 241 Md. 446, 450, 217 A.2d 262, 264 (1966); Clayburn v. Soueid, 239 Md. 331, 337, 211 A.2d 728, 731 (1965); Sun Cab Co. v. Powell, 196 Md. 572, 582, 77 A.2d 783, 7......
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    ...the ultimate solution. The weight given to duration of employment is best illustrated perhaps by our decision in Lupton v. McDonald, 241 Md. 446, 217 A.2d 262 (1966), where Judge Oppenheimer, speaking for the Court, 'The present case presents a converse factual situation to Clayburn and Jac......
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    ...from the coverage of the workers' compensation laws. See, e.g. Wood v. Abell, 268 Md. 214, 221, 300 A.2d 665 (1973); Lupton v. McDonald, 241 Md. 446, 217 A.2d 262 (1966); Clayburn v. Soueid, Inc. 239 Md. 331, 211 A.2d 728 (1965); East v. Skelly, 207 Md. 537, 114 A.2d 822 (1955); Moore v. Cl......
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