Roland v. Lloyd E. Mitchell, Inc.

• Decision Date: 23 November 1959
• Docket Number: No. 18,18
• Citation: Roland v. Lloyd E. Mitchell, Inc., 155 A.2d 691, 221 Md. 11 (Md. 1959)
• Parties: Murray ROLAND, to own use and to use of Hartford Accident & Indemnity Company, v. LLOYD E. MITCHELL, INC.
• Court: Maryland Court of Appeals

Page 11

221 Md. 11

155 A.2d 691

Murray ROLAND, to own use and to use of Hartford Accident &amp Indemnity Company,

v.

LLOYD E. MITCHELL, INC.

No. 18.

Court of Appeals of Maryland.

Nov. 23, 1959.

Benjamin G. Miller, Baltimore, for appellant.

Grafton D. Rogers, Baltimore, for appellee.

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

BRUNE, Chief Judge.

Roland, the plaintiff-appellant, brought this suit to his own use and to that of an insurance carrier which had made payments to him in accordance with a Workmen's Compensation award, against his employer, Hardinge Co., Inc. (Hardinge), Lloyd E. Mitchell, Inc. (Mitchell) and Esso Standard Oil Company (Esso) for injuries sustained by Roland as a result of an explosion while he was working on the premises of Esso. This appeal is from a summary judgment in favor of Mitchell. The suit has not been determined as against the other defendants.

The question chiefly argued on this appeal was whether the relationship between Hardinge and Mitchell was that of seller and buyer or of subcontractor and prime contractor. The judgment of the trial court was based upon a finding that the relationship was of the latter type. Since the judgment was a summary judgment, its correctness depends upon whether or not the undisputed facts and the inferences therefrom support this finding. If they do so, the judgment was correct; if they do not, Mitchell was not entitled to judgment as a matter of law.

We do not think that there is any dispute with regard to the law as to whether Roland can or cannot maintain his suit against Mitchell once the relationship between Hardinge and Mitchell with respect to the work in which Roland was engaged at the time of the injury is definitely determined. If the relationship between Hardinge and Mitchell was that of subcontractor and contractor, Mitchell would be a statutory employer of Roland by virtue of Code (1957), Art. 101 (the Workmen's Compensation Act), § 62 and, under § 15 of that Article Roland's exclusive remedy would be under that Act. State, to Use of Hubert v. Benjamin F. Bennett Building Co., 154 Md. 159, 140 A. 52; State to Use of Reynolds v. City of Baltimore, 199 Md. 289, 86 A.2d 618; Kegley v. Vulcan Rail & Construction Co., 203 Md. 476, 101 A.2d 822. On the other hand, if Mitchell was not a statutory employer of Roland, the latter might maintain this tort action against Mitchell for alleged negligence in accordance with § 58 of the Workmen's Compensation Act. M. A. Long Co. v. State Accident Fund, 156 Md. 639, 144 A. 775; Ryan v. Bethlehem Sparrows Point Shipyards, Inc., 4 Cir., 1953, 209 F.2d 53.

There is also, we think, no doubt as to the law governing the granting of a motion for summary judgment applicable to this case. If the relationship of Hardinge to Mitchell with regard to the work in which Roland was engaged when injured is shown by the undisputed facts and inferences therefrom to have been that of subcontractor and contractor, then as a matter of law Mitchell was entitled to judgment, and the summary judgment in Mitchell's favor was properly entered. Maryland Rules, Rule 610 d; Frush v. Brooks, 204 Md. 315, 104 A.2d 624; Strickler Engineering Corp. v. Seminar, Inc., 210 Md. 93, 122 A.2d 563; Concord Co. v. Matherly 216 Md. 453, 140 A.2d 900; Mullan Contracting Co. v. International Business Machines Corp., 220 Md. 248, 151 A.2d 906. On the other hand, if there was a genuine dispute as to any material fact, summary judgment could not properly be granted. Cox v. Sandler's Inc., 209 Md. 193, 120 A.2d 674; Burrell v. Frisby, 212 Md. 181, 129 A.2d 75; Tellez v. Canton Railroad Co., 212 Md. 423, 129 A.2d 809. Furthermore, in a summary judgment proceeding, even though the underlying facts may have been undisputed, if they were susceptible of more than one inference, the party against whom inferences were sought to be drawn (Roland) was entitled to the inferences most favorable to his contentions. White v. Friel, 210 Md. 274, 123 A.2d 303, and cases therein cited.

The facts as shown by the printed record extract are presented through affidavits and documentary evidence. They are summarized below. We have also added information derived from one deposition (relied on by Mitchell) as to the nature of Roland's work at the time of his injury.

Esso entered into a contract with Mitchell under which Mitchell agreed to furnish all material, superintendence, labor and equipment for the construction of certain facilities at Esso's Baltimore Refinery, including 'the designing and erecting of two * * * separator settling tanks and flight scrapers in the existing No. 3 Separator with attendant equipment.' Mitchell understook to install the equipment.

Mitchell entered into a contract with Hardinge for the purchase of the flight scrapers and attendant equipment. Most of the terms of that contract are set forth in a proposal from Hardinge to Mitchell, which the latter accepted or purported to accept by a purchase order containing some additional terms that were apparently agreed to by Hardinge. The proposal called for the delivery of the equipment 'f. o. b. cars [at York, Pennsylvania] * * * in good shipping order' at a specified price. The proposal did not call for any installation work by Hardinge. It provided under the heading 'Drawings' that Hardinge should furnish 'assembly and erection drawings, and operating instructions.' It also contemplated that Mitchell should furnish 'any information needed to build the material to suit the local conditions, all subject to the conditions herein set forth' and shipment was to be 'in 16 to 18 weeks from receipt of order and all pertinent engineering information.' Other terms of the proposal included provisions that 'all materials defective either in labor or material are to be duplicated f. o. b. works where made [York], without charge, when examination proves the claim, but no other claims for damages or for labor will be allowed by * * * Hardinge * * *', and that '[n]o allowance will be made for repairs or alterations unless made with the written consent and approval of * * * Hardinge * * *.' Mitchell's purchase order referred to Hardinge's proposal, identified the place (Separator No. 3 at the Esso Refinery, Baltimore) where the equipment was to be used, provided that the equipment should be delivered to Mitchell, c/o Esso, at Baltimore, and also provided that the equipment was to be in addition to and identical with certain identified units previously furnished for use at the same place. This, we suppose, furnished all necessary construction and engineering data. The purchase order also contained clauses providing: (a) that all material covered thereby should be shipped prepaid; (b) that if the seller's quoted terms were F.O.B. point of shipment [as they were], the cost of freight should be added to the invoice; and (c) that 'there was no other agreement, written or verbal, between the parties pertaining to this purchase order.'

After the Hardinge equipment had been installed by Mitchell, Esso informed Mitchell that the scrapers did not operate properly and Mitchell notified Hardinge of this. Hardinge replied that it had no machinists available to do the work of getting the equipment to operate properly and requested Mitchell, at Hardinge's expense, to procure two machinists to work on the scrapers. Hardinge said that it would send its field engineer to supervise the work, and it did so. Mitchell obtained the services of the appellant, Roland, and another machinist, through Ray v. Watson Company. The two machinists were usually employed by F. A. Lazenby Company, an affiliate of the Watson Company. Mitchell paid the Watson Company, as agent for Lazenby, for the machinists' pay, and Hardinge reimbursed Mitchell therefor. While they were working under the direction of Edwin Bupp, a supervising engineer employed by Hardinge, and were engaged in correcting the malfunctioning of the machinery, an explosion occurred which injured the appellant. He received compensation for these injuries under the Workmen's Compensation Act from the insurance carrier for F. A. Lazenby Company.

The exact nature of the work which Hardinge undertook and which Roland was engaged in when injured is not shown by the appellant's statement of facts or by the appellee's few additions thereto or by the printed record extract. Roland's deposition, which was one of the items relied upon by Mitchell in support of its motion, shows that a part of the equipment furnished by Hardinge was a traveling crane, which was supposed to run back and forth along a track, moving the scrapers as it did so. The trouble was that the wheels of the crane were toed in. Consequently, they would not run true and the crane would not operate satisfactorily. Roland was employed in seeking to correct this condition.

The learned trial judge filed a short memorandum in which he did not undertake to 'review the facts of the...