State, to Use of Reynolds v. City of Baltimore

• Decision Date: 08 February 1952
• Docket Number: No. 93,93
• Citation: 86 A.2d 618,199 Md. 289
• Parties: STATE, to Use of REYNOLDS et al. v. CITY, OF BALTIMORE et al. WEIDMAN v. CITY OF BALTIMORE et al.
• Court: Maryland Court of Appeals

Page 289

199 Md. 289

86 A.2d 618

STATE, to Use of REYNOLDS et al. v. CITY, OF BALTIMORE et al.

WEIDMAN v. CITY OF BALTIMORE et al.

No. 93.

Court of Appeals of Maryland.

Feb. 8, 1952.

Edward L. Rich, Jr. and John D. Alexander, Baltimore (Constable & Alexander, Baltimore, on the brief), for appellants.

Robert D. Bartlett and C. Damer McKenrick, Baltimore, for Samuel R. Rosoff, Ltd.

F. Clifford Hane, Asst. City Sol., Baltimore (Thomas N. Biddison, City Sol., Baltimore, on the brief), for Mayor and City Council of Baltimore.

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

HENDERSON, Judge.

These two cases arise out of the accidental death of a workman in the course of the construction of a Water Tunnel Project in Baltimore City. Suits were instituted against the City and Rosoff. A demurrer by the City to the third amended declaration was sustained without leave to amend. Trial of the cases against Rosoff resulted in directed verdicts in favor of the defendant and judgments thereon. There is little dispute as to the facts and they may be briefly stated.

The Water Tunnel Project, designed to bring water into the City from the Patapsco River Valley, called for the construction of a tunnel, varying in diameter from seven to ten feet and in depth from sixty to three hundred feet, for a distance of about seven miles. The City caused four shafts to be sunk for the purpose of providing prospective bidders with information as to the soil and rock formation, and as a means of ingress for workmen and materials and egress for the spoil from the excavation. Rosoff was the successful bidder for the work of excavating and lining the tunnel 'and all appurtenant construction necessary for the complete installation as shown on the drawings and/or as specified.' 'The contractor shall furnish all labor, tools, implements, materials, machinery and equipment necessary * * * for such complete installation.' Under the heading 'Safety Precautions at Shafts' it was provided that 'cages with fixed guides shall be used for hoisting men and materials during construction.' The cages operate in what are known as 'headframes'. Rosoff entered into a contract with Archer Iron Works, Inc., of Chicago, for 'fabrication and erection of the four headframes complete, installed in place in accordance with the terms of this agreement', for $195,000. Plans for the headframes and hoists were submitted to and approved by the City. Archer contracted with Arthur Phillips & Co. of Towson, Maryland, on a 'time and material basis', for the latter to supply ironworkers and equipment for the assembly and erection of the hoists and lifts under Archer's supervision. The last work under this contract was begun at the Montebello Shaft in February, 1948.

On February 13, 1948 a headframe section was being lowered from the surface to a point near the bottom of this shaft by means of a crane, operated by one Massey in the general employ of Rosoff. It appears that Phillips' crane was not available that day, and Rosoff's crane had been substituted. The operation was under the general direction of Leroy, Archer's superintendent. Weidman, Phillips' employee, was riding the section to guide it down the shaft and place it in position. The crane operator allowed the cable to slip on the brake drum; the safety dog or pawl was not in place, and there was a severe jolt. Weidman lost his hold and fell down the shaft. He was painfully injured and died the next day.

Thereafter claims under the Workmen's Compensation Act were filed by the dependents of the deceased employee against Phillips. Awards were passed and have been, or are being, paid by Phillips' insurer. Thereupon suits for the death under Article 67 of the Code, and for pain and suffering under Article 93 of the Code, were brought against the City and Rosoff. Rosoff had complied with all relevant provisions of the Workmen's Compensation Act and claimed immunity from suit.

The trial court ruled as a matter of law that these suits could not be maintained against Rosoff as a negligent third-party amenable to suit under Section 59, Article 101 of the Code (1947 Suppl.). The common law action for damages is preserved by that section only against a 'person other than the employer' of the workman. The test of whether Rosoff was an employer of Weidman, within the meaning of Section 59, depends upon the application of Section 63, Article 101 of the Code (1947 Suppl.) which 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 sub-contractor, for the execution by or under the sub-contractor, 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; * * *.'

There can be no doubt that 'where the prescribed conditions exist, the principal contractor becomes by the act the statutory employer' and is entitled to immunity from suit under the exception in Section 59. State, use Hubert v. Benjamin F. Bennett Building Co., 154 Md. 159, 162, 140 A. 52. In that case a tile-worker, employed by a sub-contractor of a building contractor, was killed by the latter's negligence. The court said, 154 Md. at page 166, 140 A. at page 54: 'Although acting independently of the other, the principal contractor and the subcontractor, with his workmen employed in the execution of the work, were each, in his own separate capacity, co-operating toward the execution of the whole of a particular work which the principal contractor had promised to perform'. On the other hand in Long Co. v. State Accident Fund, 156 Md. 639, 144 A. 775, 777, it was found that the relationship of principal contractor and subcontractor did not exist, for although there was a contract to erect a building, the contract provided that 'the owner * * * will make direct contracts for the heating and ventilating, the plumbing, drainage, etc., the electric wiring, tubing, etc., and the refrigerating equipment.' The owner let a contract for the electric wiring and an employee of that contractor was injured. The court said, 156 Md. at page 645, 144 A. at page 778: 'to create the principal contractor a statutory employer, he must have contracted in the first instance to do the work himself, and subsequently sublet the whole or a portion of it to someone else.'

We think the Long Co. case is distinguishable. In the instant case the City did not reserve the right to make separate contracts for portions of the work. The whole work of constructing the tunnel was let to Rosoff. The fact that the work of erecting the hoists was necessarily preliminary and appurtenant to the actual excavation does not make it any the less an integral 'part of the work undertaken by the principal contractor'. It was within the contemplation of the parties that Rosoff should provide headframes to support the hoists and cages; in no other way could the excavated material be removed. Removal of spoil is an essential part of a tunnel-digger's 'trade, business or occupation'. While we have found no case directly in point, it has been held that the erection and repair of oil well derricks is within the scope of an oil company's business, as a necessary incident thereto. Purkable v. Greenland Oil Co., 122 Kan. 720, 253 P. 219, 221; Dandridge v....