State v. Benjamin F. Bennett Bldg. Co.

• Decision Date: 11 January 1928
• Docket Number: 48.
• Citation: 140 A. 52,154 Md. 159
• Parties: STATE, TO USE OF HUBERT, v. BENJAMIN F. BENNETT BLDG. CO.
• Court: Maryland Court of Appeals

140 A. 52

154 Md. 159

STATE, TO USE OF HUBERT, v. BENJAMIN F. BENNETT BLDG. CO.

No. 48.

Court of Appeals of Maryland

January 11, 1928

Appeal from Baltimore City Court; Albert S. J. Owens, Judge.

"To be officially reported."

Action by the State to the use of Mary Hubert, mother of Edward Hubert, deceased, against the Benjamin F. Bennett Building Company. Judgment overruling a demurrer, and plaintiff appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, and PARKE, JJ.

Malcolm J. Coan, of Baltimore (Paul M. Higinbothom and Curran & Leach, all of Baltimore, on the brief), for appellant.

William D. Macmillan, of Baltimore (Harold Tschudi and George Moore Brady and Semmes, Bowen & Semmes, all of Baltimore, on the brief), for appellee.

PARKE J.

The Benjamin F. Bennett Building Company, the appellee, is a corporation engaged in the construction of buildings, and for the purpose of carrying out its undertaking to erect a building, entered into a contract with Joseph B. Dunn & Sons Inc., a corporation, to furnish all the necessary work labor, and materials in the finishing of the tile floors of the building in course of completion. In the employ of the second corporation and subcontractor was an infant, Edward Hubert, who had a dependent mother; and this infant, while at labor as a tile worker, was killed, without any failure of care on his part, through the negligence of the servants of the Benjamin F. Bennett Company, the principal contractor. The death arose from an accidental injury arising out of and in the course of the infant's employment, and, pursuant to the provisions of the Workmen's Compensation Act (Code Pub. Gen. Laws 1924, art. 101), the accident and death of the boy was reported to the State Industrial Accident Commission by his employer. His dependent mother duly filed her claim for compensation. The commission, after a hearing, awarded her compensation, and directed that it be paid by Joseph B. Dunn & Sons, the employer, and the insurance carrier, which are discharging the award. The appellee, as the principal contractor, had complied with all the requirements of the act, and was able and willing to pay any benefits or compensation on account of the death of the infant which the commission might have found the appellee to have been liable for under the act. Two months after the award an action was brought at law by the state, for the use of the mother, against the Benjamin F. Bennett Building Company, the principal contractor, to recover the sum of $20,000 for the damages sustained by the mother as the dependent of her dead son.

These are the material facts disclosed by the declaration and a second plea, and admitted by the demurrer to this plea. The trial court overruled the demurrer, and the appeal seeks to have this ruling reversed. The important question arising on these facts is, Was the principal contractor liable in an action at law for damages sustained by a dependent mother in the death of her son through the negligence of the principal contractor.

It is common practice in certain trades for one party to agree for a reward to complete a certain work or undertaking, and then to enter into subcontracts with various parties providing for the execution by them respectively of specified parts of the whole work or undertaking, so that the whole or part thereof would be done by such subcontractors and their assistants. In this manner the principal contractor would avoid in part the responsibility for accidents happening in the carrying out of the work or undertaking. If this responsibility were so shifted upon parties too weak financially to meet it, and who had not secured compensation to their employees in one of the ways required by the statute, an injured workman, proceeding at common law or under the Workmen's Compensation Act, would obtain neither compensation nor damages.

Furthermore, difficult questions arose with reference to whether the workman was the servant of the principal contractor rather than of his immediate employer, depending largely upon who had power to hire and discharge, to direct and control the workmen, and a variety of other circumstances. In order to obviate these contingencies, and more certainly to assure the workman his contemplated compensation, the statute has imposed, under a certain state of circumstances, a liability to pay upon the principal contractor, although he might not have been held at common law the employer of the injured workman. In short, section 62 of article 101 of the Code, known as the "Workmen's Compensation Act," has provided that, where any principal contractor has undertaken to execute any work in the way of his trade, business, or occupation that he has contracted to perform, and contracts with any other party as a subcontractor for the execution by or under the subcontractor 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 the act which he would have been liable to pay if that workman had been immediately employed by him; and, where compensation is claimed from, or proceedings are taken against, the principal contractor, then, in the application of the act, reference to the principal contractor shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he was immediately employed. The effect of this provision, when brought into operation through the designated state of circumstances, is to impose the absolute liability of an employer upon the principal contractor when he was not in law the employer of the injured workman. The result, then, is that, where the prescribed conditions exist, the principal contractor becomes by the act the statutory employer of any workman employed in the execution of the work. This absolute statutory liability is not affected by the fact that it is later provided in section 62 that the workman may elect whether he shall enforce the compensation against the principal contractor or the subcontractor, or that, whenever an employee proceeds against the principal contractor, the latter shall have the right to join the subcontractor or any intermediate contractors as defendant or codefendant in the case; or that, when the principal contractor is liable to pay compensation pursuant to this section, he shall be entitled to indemnity from any employer who would have been liable to pay compensation to the employee independently of section 62.

These provisions leave unimpaired the primary liability imposed by the statute upon the principal contractor. The first gives to the workman the choice of two primary liabilities, as but one is enforceable by him. The second is a matter or procedure and the third relates to the question of indemnity to the principal contractor by the subcontractor, and neither concerns the liability of the principal contractor to the workman. This primary liability so imposed by statute upon the principal contractor is not based upon contract, since the legislation is predicated upon the fact that no contractual relation, as master and servant, exists between the principal contractor and the workman; nor does it flow from a breach of duty, because the liability arises independently of the existence of fault on the part of the principal contractor. This legislation, however, finds its constitutional support in the consideration that the general welfare is promoted and conserved by...