M.A. Long Co. v. State Acc. Fund

• Decision Date: 15 February 1929
• Docket Number: 101. [a1]
• Citation: 144 A. 775,156 Md. 639
• Parties: M. A. LONG CO. v. STATE ACCIDENT FUND.
• Court: Maryland Court of Appeals

144 A. 775

156 Md. 639

M. A. LONG CO. v. STATE ACCIDENT FUND.

No. 101. ^[a1]

Court of Appeals of Maryland

February 15, 1929

Appeal from Baltimore City Court; Charles F. Stein, Judge.

Action by the State Accident Fund, in its own right and for the use of Eugene Lappielly, against the M. A. Long Company. Judgment for plaintiff, and defendant appeals. Reversed, without a new trial.

Offutt J., dissenting.

Argued before BOND, C.J., and ADKINS, OFFUTT, DIGGES, and PARKE, JJ.

Clarence A. Tucker and Joseph Townsend England, both of Baltimore (Knapp, Tucker & Thomas, of Baltimore, on the brief), for appellant.

Willis R. Jones and Thomas E. Mason, both of Baltimore, for appellee.

DIGGES J.

The appellee in this case, the State Accident Fund, as compensation insurer, in its own right and for the use of Eugene Lappielly, recovered a judgment in the Baltimore city court against the appellant, the M. A. Long Company, a body corporate, for $16,000, under the provisions of section 58 of article 101 of the Code (Workmen's Compensation Law). Judgment was entered upon the verdict of the jury for that amount, and the appeal is from that judgment.

The appellant's contentions, which are seriously pressed in this court and upon which he relies for a reversal, are that the lower court erred in rejecting its prayers, which asked for an instructed verdict for the defendant on three grounds First, because the provisions of article 101 made the appellant liable to the payment of compensation to Lappielly the injured party, and therefore it was immune from a common-law action based upon negligence; second, that there is no evidence in the case legally sufficient to support a verdict for the plaintiff; and, third, that the record discloses such contributory negligence on the part of the plaintiff as would bar recovery. There are two exceptions in the record, the second of which raises the propositions of law above stated, while the first is to a ruling of the court on the admission of evidence.

This first exception relates to the action of the court in permitting a question and answer of the witness Beck, who was the foreman of the employer of Lappielly, at a time when he was recalled. In his examination in chief on the day previous he was asked this question: "Q. During that day (referring to the day of the accident), had you seen any of Long's foremen or superintendents up there? (meaning up on the job). A. Well, I couldn't say that I did not or did, because I don't know that day much different from any other day; they were always around, all over the building." When he was recalled, the witness testified without objection that the foreman of Long was almost continuously on the job. "Q. And when you say on the job, what do you mean, what job? A. In the building; that is, at that stage of the building there was only the first floor and the second floor that we were working on. Q. Where was he? A. He was on both the first and second floor, he was all over those two floors. Q. During this day of the accident, how many times did you see him up on the second floor, as nearly as you can tell us? A. I judge I seen him--well, it would only be a guess. Q. About how many times did you see the Long superintendent or foreman on the second floor during the day of this accident prior to the occurrence of the accident? Mr Tucker: I object to the question. The Court: He can tell if he knows how many times, or he can say if they are many or few; he can answer in any way, but he cannot guess at it. Mr. Tucker: The ground of our objection is because the witness himself said it would only be a guess." The court overruled the objection and permitted the witness to answer: "Well, I will say at least once an hour."

The purpose of this question was to show that the appellant's foreman or superintendent was at the scene of the accident frequently during the day of the accident, and while the witness said that he had seen the superintendent there, but, if he stated the number of times, it would only be approximate or a guess, the court permitted the witness to say how many times, if he knew, or to say whether his visits were many or few, whereupon the witness said that the superintendent or foreman was on the second floor of the building at the scene of the accident at least once an hour prior to the accident. The accident occurred about 3 o'clock, and from this answer of the witness the jury could conclude how frequently the superintendent was there before the accident. The witness could not say positively how many times he was there, but he was positive that he was present at least once an hour. There is no error in this ruling.

In order to intelligently discuss the questions raised by the second exception, relating to the ruling on the prayers, it is necessary to consider the facts surrounding the accident resulting in the injury for which the judgment was obtained, which we shall do as briefly as possible in narrative form. The appellant is a building contractor, and had entered into a contract with Johns Hopkins University for the construction of what is known as the School of Hygiene, located in Baltimore City. By the eighth article of this contract it was provided: "The owner [Hopkins] will make direct contracts for the heating and ventilating, the plumbing, drainage, etc., the electric wiring, tubing, etc., and the refrigerating equipment. The contractor [M. A. Long Company] agrees to assume control over the contractors for the above-mentioned mechanical equipment to the same extent as though they were his subcontractors, except as to the provisions of payment and financial responsibility." No other provisions of this contract are necessary for the consideration of the questions involved.

Subsequently Hopkins made a contract with James McCrea & Son for the installation of the heating, ventilating, plumbing, drainage, electric wiring, tubing, and refrigerating equipment, and by article 10 of this contract it was provided: "Except as to the provisions of payment and financial responsibility, the contractor agrees to be under the control of the general building contractor to the same extent as though the former were a subcontractor to the latter."

McCrea & Son in turn contracted with the Electro-Mechanical Company, the direct employer of Lappielly, for the installation of the electrical equipment, including wiring, tubing, etc., and by section 9 of this written contract it was provided: "Except as to the provisions of payment and financial responsibility, the subcontractor agrees with the contractor to be under the control of the general building contractor to the same extent as though the former and the contractor were subcontractors to the latter." Lappielly was employed by the Electro-Mechanical Company and sent to work on the School of Hygiene building, and had been at work about two weeks before September 12, 1924, the day upon which the accident occurred.

Upon these facts rests the first contention of the appellant, to wit, that the Workmen's Compensation Law applies, and that compensation under the act could be awarded against the appellant, and therefore it is immune from a common-law action; its contention in this respect being that the clauses of the various contracts above set forth constituted the Electro-Mechanical Company a subcontractor of the Long Company, and that, this being true, section 62 of article 101 provides that the employee of a subcontractor can demand and be awarded compensation, either from the subcontractor, his immediate employer, or from the principal contractor, and, being entitled to receive compensation from the principal contractor, the Long Company, by force of the statute, it is not liable to a common-law action based upon its negligence. If the premise here argued were correct, the authorities would sustain the result contended for; but, before we can reach the conclusion of immunity from a common-law action, we must find that the appellant and the employer of Lappielly occupied the relationship of principal contractor and subcontractor in respect to each other. It may be that the statute law should, under the circumstances disclosed by this record, create such a relationship; but, as it now stands, it does no such thing.

Section 62 provides: "When any person as a principal contractor, undertakes to execute any work which is a part of his trade, business or occupation which he has contracted to perform and contracts with any other person as subcontractor, for the execution by or under the subcontractor, of the whole or any part of the work undertaken by the principal contractor, the principal contractor shall be liable to pay to any workman employed in the execution of the work any compensation under this article which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal contractor, then, in the application of this article, reference to the principal contractor shall be substituted for reference to the employer. * * * Where the principal contractor is liable to pay compensation under this section, he shall be entitled to indemnity from any employer, who would have been liable to pay compensation to the employee independently of this section, and shall have a cause of action therefor against such employer."

Section 36 provides: "Each employee (or in case of death his family or dependents) entitled to receive compensation under this article shall receive the same in accordance with the following schedule and except as in this article otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever."

Section 14 provides: "Every...