Snider v. Gaultney

Decision Date16 December 1958
Docket NumberNo. 57,57
Citation146 A.2d 869,218 Md. 332
PartiesHoward SNIDER v. D. Glenn GAULTNEY, Employer, and American Surety Company, Insurer.
CourtMaryland Court of Appeals

Harold Buchman, Baltimore, for appellant.

W. Lee Harrison, Towson (Douglas G. Bottom and Richard C. Murray, Towson, on the brief), for appellees.

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

HENDERSON, Judge.

This appeal is from a judgment n. o. v. entered by the trial court in favor of the defendants, employer and insurer, in a workmen's compensation claim. Two issues were submitted to the jury: whether the claimant was an employee of Gaultney at the time of his injury, and whether he sustained an accidental injury in the course of his employment. The jury answered 'Yes' on both issues. The trial court granted the motion for judgment n. o. v. on the ground that under the evidence the claimant was an independent contractor as a matter of law. No question is raised on this appeal as to the second issue. The appellant contends that there was legally sufficient evidence to support the jury's finding on the first issue.

The appellee, Gaultney, had been engaged in the contracting business for a number of years. The particular work in which he specialized was that of a 'dry wall applicator', described as the applying or nailing of sheet-rock to the interior of houses under construction, and 'taping and finishing it, ready for painting and papering.' He contracted to perform this work with various developers and builders and had seven regular employees operating in two crews, one to apply the sheet-rock and one to tape and finish it. These regular employees were carried on his payroll and paid an hourly wage, from which was deducted workmen's compensation insurance, and social security and income taxes withheld. From time to time as the volume of work required, he would also engage the services of other workmen to apply the sheet-rock at a fixed price per sheet. These additional workmen were not carried on his payroll, and there were no deductions similar to those made in the case of his regular employees.

The claimant, sixty-two years of age, had worked for Gaultney on a number of previous occasions over a period of years. He had come to this area from West Virginia about six years before, and solicited work as a sheet-rock fastener. He was always accompanied by his sons or other young men, and they worked as members of a 'team'. They furnished their own tools, such as hammers, nail aprons, knives and T-squares. Gaultney furnished the nails, and either he or the builder would furnish the sheet-rock. Each sheet was about 12 feet long and 4 feet wide, and weighed about 75 pounds. It was necessary to have a helper or helpers to hold each sheet in position while it was being nailed to the walls and ceilings. It appears that Gaultney also furnished trestles and rough lumber for scaffolds which the team erected where necessary to reach the ceilings. The rate of pay on a previous job had been eighty cents per sheet. Sometimes Gaultney would pay for the work in one check which they would divide, sometimes he would issue separate checks to each member of the team.

About two weeks before the accident in question, the claimant, accompanied by his 16 year old son, Franklin, and another man, 21 years of age, drove to a site where Gaultney was working on the interior of houses under construction, and asked for work. Gaultney pointed out a house to them and told them to start. When they had finished there, he directed them to work in another house. On Friday of the first week he paid from $99.20 (124 sheets at eighty cents per sheet) in a single check made payable to Franklin. During the second week the claimant sustained a back injury by falling from a scaffold. Gaultney told him he would pay his doctor's and hospital bills. The compensation claim was filed in due course.

It was conceded that the work of fastening the sheet-rock did not require close supervision. Gaultney would not visit the scene of their operation more than once a day, although inspectors of the builder, or other inspectors, examined their work from time to time. However, there was testimony that Gaultney would usually explain the layout, and tell him whether they should cover the spaces over doors and windows, the 'headers', and how to deal with electrical outlets. Sometimes he would tell them how to cut the sheet-rock to fit angles, where the joints should be placed, and how many nails should be used in the studdings. If the work was not satisfactory, he would make them do it over. They did not punch a time clock, but they usually worked regular hours, from 8:00 A.M. to 4:30 P.M. Gaultney told them he would 'like them to' do that. Gaultney testified he did not care what hours they worked, but admitted he expected them to proceed without delay. If they were 'slow and doing a bad job', he would 'have to get someone else in there.' Gaultney also admitted that the nature of the work was exactly the same, whether performed by his regular employees or the additional 'team', and his control and supervision was about the same in each case. It would appear from Gaultney's testimony that the reason he did not carry the claimant and the other members of the team upon his payroll was not so much from a belief that they were independent contractors, by the sheet or by the house, as from a belief that their employment, being temporary and intermittent, was 'casual'. The statute excludes casual employees from coverage and sometimes the line is difficult to draw. See State Accident Fund v. Jacobs, 134 Md. 133, 106 A. 255, and cases cited. But no such issue was raised in the instant case, and we express no opinion on the point.

It is conceded that the claimant's right to recover in the instant case turns upon whether at the time of his injury he was an employee of Gaultney, or an independent contractor. The statute...

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13 cases
  • Whitehead v. Safway Steel Products, Inc.
    • United States
    • Maryland Court of Appeals
    • September 1, 1984
    ...at 396, 265 A.2d 915; Marine v. Service Trucking Co., 225 Md. 315, 321, 170 A.2d 188 (1961); L. & S. Co., supra; Snider v. Gaultney, 218 Md. 332, 337-338, 146 A.2d 869 (1958); W.J. Dickey v. State Tax Comm., 212 Md. 607, 611-612, 131 A.2d 277 (1957); Charles Freeland v. Couplin, 211 Md. 160......
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    ...225 Md. 315, 319, 170 A.2d 188 (1961); L. & S. Co. v. State Accident Fund, 221 Md. 51, 56, 155 A.2d 653 (1959); Snider v. Gaultney, 218 Md. 332, 336-37, 146 A.2d 869 (1958); Greer Lines Co. v. Roberts, 216 Md. 69, 78, 139 A.2d 235 (1958). To like effect see Annot., 83 A.L.R.2d 1282, 1284, 1......
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    ...of the work, except as to its product or result. Marine v. Service Trucking Co., 225 Md. 315, 170 A.2d 188 (1961); Snider v. Gaultney, 218 Md. 332, 146 A.2d 869 (1958). Of the several criteria to be applied in determining the relationship, the right to control the worker in the performance ......
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    ...the jury found the claimant to be the servant of the general employer. The Court of Appeals affirmed that verdict. In Snider v. Gaultney, 218 Md. 332, 146 A.2d 869 (1958), the general employer asserted that the claimant was not entitled to workmen's compensation benefits from it because the......
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