Maryland Cas. Co. v. Sause

• Decision Date: 17 March 1948
• Docket Number: 102.
• Citation: 57 A.2d 801,190 Md. 135
• Parties: MARYLAND CASUALTY CO. v. SAUSE.
• Court: Maryland Court of Appeals

57 A.2d 801

190 Md. 135

MARYLAND CASUALTY CO. v. SAUSE.

No. 102.

Court of Appeals of Maryland

March 17, 1948

Appeal from Superior Court of Baltimore City; Herman M. Moser Judge.

Action by Maryland Casualty Company, a body corporate, to its own use, and to the use of Ernest P. Kinchin, against J. William Sause for injuries when a truckload of stone dust was dumped upon Ernest P. Kinchin while at work in a bin on the premises of his employer. From an adverse judgment, plaintiff appeals.

Judgment reversed, and case remanded.

Robert E. Coughlan, Jr. and Sigmund Levin, both of Baltimore (Paul Berman and Theodore B. Berman, both of Baltimore, on the brief), for appellant.

Roszel C. Thomsen, of Baltimore (Clater W. Smith and Clark, Thomsen & Smith, all of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

HENDERSON Judge.

Ernest Kinchin, an employee of The Potts-Callahan Paving Company was injured in August 1945, when a truck load of stone dust was dumped upon him while at work in a bin on the premises of his employer. The truck in question was owned and operated by Royal H. Comes, whose services in hauling road material for the Potts Company had been procured by J. William Sause. Kinchin, as an employee of the Potts Company, received an award of Workmen's Compensation, and thereafter an action for negligence was brought against Comes and Sause by the insurance carrier to its own use and that of Kinchin. At the first trial the jury failed to agree. On the second trial in the Superior Court of Baltimore City, the jury again failed to agree, and the trial court subsequently granted a motion for judgment in favor of Sause, on the ground that there was no evidence in the case legally sufficient to show that the relationship of master and servant existed between Sause and Comes at the time of the injury. The appeal challenges the correctness of that ruling.

Sause was a hauling contractor who owned ten dump-trucks. In August, 1945, he had an oral contract with The Potts-Callahan Paving Company, a paving contractor and manufacturer of road building materials, to haul such materials in and out of its plant at 2801 Falls Road in Baltimore City. The Potts Company itself owned a number of trucks, which were, however insufficient for the particular work in hand. Under its contract with Sause, the latter agreed to supply as many additional trucks and drivers as might be necessary.

The arrangement was that Sherwood, the Superintendent of the Potts Company, would call Sause every night and advise him of the number of trucks the Company would need on the following day, and what they were to do. When Sause was requested to furnish more than ten trucks, he would hire individuals, like Comes, who owned and operated their own trucks, or persons, like himself, who owned a number of trucks. On some days he supplied as many as thirty trucks.

Sause testified he hired Comes to work on this particular job with his truck. He also testified that he had a right to 'fire' Comes at any time, if he or the Potts Company found that Comes' services were not satisfactory, and that he frequently visited the scene of operations to check the loads and time and to see that the trucks were being operated in a manner satisfactory to the Potts Company. In connection with the work in hand, he told Comes to haul stone dust and crushed stone from the Greenspring quarry to the Potts plant, and to alternate with another driver in the type of load. Sause denied, however, that he ever supervised the work of his drivers after they reported to the Potts Company, which had the right to direct the drivers where to go and what to haul on any given day. Kinchin testified that his duty was to 'flag' the drivers and tell them in which bins to dump, and 'sometimes I would change them off to get a load of rock'.

Under the terms of his oral contract with the Potts Company, Sause received 25¢ a ton for hauling stone dust, 40¢ a ton for crushed stone, and $3 an hour for 'waiting time', if the trucks were not continuously employed on any given day. Each driver would receive work tickets from the Potts Company at the end of each day. The drivers would turn the tickets over to Sause, who would bill the Potts Company for the amounts shown. In the case of Comes, Sause would pay him the amount shown by his tickets, less 5%. The Potts Company never paid Comes. Sause testified: 'I would collect the money and then deduct what we call 'brokerage' or 5% from that sum'. He testified that Comes was not on his payroll, and not his employee.

In the recent case of Williams Construction Company v. Bohlen Md., 56 A.2d 694, the question presented was whether Bohlen was an employee of the Williams Company at the time of the accident. Bohlen was a truck owner, operating his own truck, whose services had been procured by J. William Sause, who discounted his work tickets for a commission of 5%, but he was paid by the hour rather than by the load, and performed manual labor in addition to hauling, as directed by the Williams Company. He testified that he always received orders from the Williams Company as to what he should do, and that the Company had the right to discharge him. We held there was sufficient evidence to go to the jury as to whether he was an employee of the Williams Company, rather than an independent contractor. This case may be contrasted with Hilton Quarries, Inc., v. Hall, 161 Md. 518, 526, 158 A. 19, 22, where it was held that the services of a truck driver were not transferred to the control of the quarry company, as a matter of law. 'While the truck driver cooperated with the quarrymen in the loading of the trucks as they wished, he was simply receiving the loads to carry out Schmeltz's contract of carriage'. In the case at bar, we do not think the evidence is so clear as to require a finding that Comes was an independent contractor. The essential elements of choice, present in the cases of Hood v. Azrael, 167 Md. 641, 175 A. 666; Washington News Company v. Satti, 169 Md. 489, 182 A....