Moore v. Clarke

• Decision Date: 12 November 1936
• Docket Number: 15.
• Citation: 187 A. 887,171 Md. 39
• Parties: MOORE v. CLARKE ET AL.
• Court: Maryland Court of Appeals

187 A. 887

171 Md. 39

MOORE v. CLARKE ET AL.

No. 15.

Court of Appeals of Maryland

November 12, 1936

Appeal from Superior Court of Baltimore City; Samuel K. Dennis Judge.

Proceeding under the Workmen's Compensation Law by Barbara Hanford Moore for the death of Bernard A. Hanford, her son, on behalf of and as natural guardian for Bernice G. Hanford and others infant brothers and sisters of Bernard A. Hanford, deceased claimant, opposed by Mr. and Mrs. F. Ambrose Clarke, and Captain P. M. Walker as their agent, employers, and the Maryland Casualty Company, insurer, and another. From an adverse judgment on appeal from an order of the State Industrial Accident Commission disallowing the claim claimant appeals.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, MITCHELL, SHEHAN, and JOHNSON, JJ.

J. Kemp Bartlett, Jr., and C. Damer McKenrick, both of Baltimore (Bartlett, Poe & Claggett, of Baltimore, on the brief), for appellant.

Roszel C. Thomsen, of Baltimore (Robert E. Coughlan, Jr., of Baltimore, on the brief), for appellees.

OFFUTT Judge.

Bernard A. Hanford, a professional jockey, was accidentally killed while riding a horse called "Apprehensive," entered by Mrs. F. Ambrose Clarke in a horse race held at the Pimlico Race Track in Baltimore City on May 4, 1933.

On February 24, 1934, Mrs. Barbara Hanford Moore, his mother, filed with the State Industrial Accident Commission of Maryland on behalf of his infant brothers and sisters, a claim for compensation against Mr. and Mrs. F. Ambrose Clarke, "and or Captain P. M. Walker," as agent for them, the Maryland Casualty Company, insurer, and Preston M. Burch, on the theory that Hanford's death resulted from an accident that arose out of and in the course of an employment by the Clarkes, Walker, and Burch or some one or more of them. The Clarkes were insured in compliance with the Workmen's Compensation Law of this state (Code Pub.Gen.Laws 1924, art. 101, § 1 et seq., as amended) by the Maryland Casualty Company, Walker was their agent, and Burch was a horse trainer to whom Hanford had formerly been apprenticed and who had after the termination of the apprenticeship engaged his services as a jockey to ride his, Burch's horses.

To that claim the persons named as employers, and the insurer presented two defenses: (1) That at the time of the accident Hanford was not an employee within the meaning of the Workmen's Compensation Law, but an independent contractor; and (2) that if he was an employee he was a casual employee and therefore expressly excepted by its terms from the application of the statute.

Issues submitting those defenses were considered by the Commission, and it found (1) that Hanford's death did not "arise out of and in the course of employment" by Walker, Burch or the Clarkes; (2) that when it occurred, Hanford was an independent contractor and not a casual employee, and as a result of those findings it disallowed the claim. From that decision the claimant appealed to the superior court of Baltimore City, where the case was tried before a jury on these three issues:

"1. Was Bernard A. Hanford acting as an independent contractor at the time of his injury?

2. Was Bernard A. Hanford an employee of Mrs. F. Ambrose Clarke at the time of his injury?

3. Was Bernard A. Hanford a casual employee of Mrs. F. Ambrose Clarke at the time of his injury?"

At the conclusion of the claimant's case the court instructed the jury to answer the first issue "Yes," the second issue, "No," and the third issue "No." From the judgment on the verdict returned in accordance with those instructions, the claimant took this appeal. At some stage in the proceedings the claim against Burch was abandoned, so that the appeal concerns only the Clarkes, as principals, Walker as their agent, and the insurer.

It submits three questions: (1) Was Hanford at the time of his death an independent contractor, or was he an employee of the Clarkes or either of them, or of Walker? (2) If he was an employee, was he a casual employee within the meaning of article 101, section 65, subsection 3, Code 1935 Supplement? and (3) May that question be considered on this appeal?

For convenience the third question will be first considered. The appellant's contention is that if the trial court erred in ruling that Hanford was an independent contractor, the judgment must be reversed, because, she says, since the Commission found that he was not a casual employee, the statutory presumption precluded the trial court from ruling as a matter of law that he was a casual employee, and that therefore this court, even though the undisputed facts permit no inference other than that he was a casual employee, must nevertheless remand the case for a new trial on that issue.

That contention, however, is not only contrary to the recorded decisions of this court, but is inconsistent with the expressed and explicit purpose and intention of the statute itself.

The statute, Code 1935 Supp. art. 101, § 56, provides that "Any employer, employee, beneficiary or person feeling aggrieved by any decision of the Commission affecting his interests under this Article, may have the same reviewed by a proceeding in the nature of an appeal." It then provides that in dealing with such an appeal the court to which the appeal is taken "shall determine whether the Commission has justly considered all the facts concerning the injury, whether it has exceeded the powers granted it by the Article, and whether it has misconstrued the law and facts applicable in the case decided. If the Court shall determine that the Commission has acted within its powers and has correctly construed the law and facts, the decision of the Commission shall be confirmed; otherwise it shall be reversed or modified," and in the same section further provides that "In all Court proceedings under or pursuant to this Article, the decision of the Commission shall be prima facie correct and the burden of proof shall be upon the party attacking the same." It also allows an appeal to this court from the judgment of the "Circuit Court of the County or the Common Law Courts of Baltimore City" entered on any such appeal "as in other civil cases."

The purpose of those provisions was to protect the parties to proceedings under the authority of the statute from error by the Commission in deciding controverted issues of fact by granting to the party aggrieved the right of having the decision of the Commission on issues of fact reviewed by the court or by a court and jury in a circuit court in a county, or by a common-law court in the city of Baltimore, and to protect them against errors of law by the Commission or by such circuit or common-law court by granting to the party aggrieved first the right to have the decisions of the Commission on matters of law reviewed by such circuit or common-law court, and, second, to have the decision of such court on any matter of law reviewed by this court.

It nowhere appears in the statute that the Legislature intended that any party to a proceeding before the Commission could secure a right through the Commission's error, but, on the contrary, the clear intention of the statute is that no rights shall accrue under it except upon facts proved or otherwise established sufficient to support the right asserted. The provision that the decision of the Commission shall be "prima facie correct" and that the burden of proof is upon the party attacking the same does not mean, therefore, that if no facts are established before the Commission sufficient to support its decision, that there is any burden of factual proof on the person attacking it, for the decision of the Commission cannot itself be accepted as the equivalent of facts which do not exist, and in all cases, whether there is evidence legally sufficient to support the decision of the Commission, is necessarily a matter of law to be decided by the court as any other question of law would be. On the other hand, where the decision of the Commission involves the consideration of conflicting evidence as to essential facts or the deduction of permissible but diverse inferences therefrom, its solution of such conflict is presumed to be correct, and the burden of proof is upon the party attacking it to show that it was erroneous. But even there the burden may be one of persuasion rather than proof, for the appellant to overcome it need not produce additional evidence, but may rely upon the identical evidence before the Commission, it is enough if he can convince the court or jury that the Commission erred in interpreting the facts or the inferences deducible therefrom, or in construing the law applicable thereto.

Where the facts are undisputed, and permit no inferences consistent with the existence of a supposed or asserted right, the existence of such right, wherever it arises, whether before the Commission, the trial court, or this court, is an unmixed question of law. If it were otherwise the rights of parties to proceedings under the statute would depend not upon the law but upon the unguided and unrestrained discretion of men.

That was the construction placed upon the statute in Harrison v. Central Construction Co., 135 Md. 170, 108 A. 874 878, where the court, speaking through Judge Burke, said: "The question as to whether an injury arose out of or in the course of the employment is ordinarily, like negligence or want of probable cause, a mixed question of law and fact, but when the facts have been ascertained and agreed upon by the parties, or are undisputed, and there is no dispute as to the inferences to be drawn from the facts, the question becomes one of law and may be decided by the court." In Todd v. Easton Furniture Mfg. Co., 147 Md. 352, 128 A. 42, 43,...