Sun Cab Co. v. Powell, 52

• Decision Date: 10 January 1951
• Docket Number: No. 52,52
• Citation: 77 A.2d 783,196 Md. 572
• Parties: SUN CAB CO. et al. v. POWELL et al.
• Court: Maryland Court of Appeals

Page 572

196 Md. 572

77 A.2d 783

SUN CAB CO. et al. v. POWELL et al.

No. 52.

Court of Appeals of Maryland.

Jan. 10, 1951.

Robert E. Coughlan, Jr., Baltimore (James J. Lindsay and G. Dudley Iverson, Baltimore, on the brief), for appellants.

Daniel E. Klein, Baltimore (W. Giles Parker, Baltimore, on the brief), for appellees.

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

DELAPLAINE, Judge.

This is a workmen's compensation case, in which the controversy is whether Melvin T. Powell, an automobile tire repairman, was an employee of Sun Cab Company, of Baltimore, or of Seiberling Rubber Company, of Akron, Ohio, when he sustained an accidental injury in the course of his employment.

Under an oral contract, Seiberling agreed to furnish the tires for all of the taxicabs operated by Sun Cab, provided that several men would handle the tire service on Sun Cab's premises. Applicants for employment were to be interviewed by Seiberling's territorial agent and by Sun Cab's personnel manager. Final authorization for the hiring of each tire service employee was to be approved by Seiberling's tire mileage department in Akron. It was further agreed that all wages for these employees were to be paid by Sun Cab, which would submit a monthly statement showing the amount paid for wages, and Seiberling would allow a credit for that amount. After the statement was returned with Seiberling's approval, Sun Cab would deduct the amount and remit the balance due for the tire service for the month.

On February 27, 1949, claimant was pulling a nail out of a tire with pliers, and as the nail came out the pliers slipped, and the nail struck him in the eye. On February 8, 1950, the State Industrial Accident Commission found that claimant was an employee of Seiberling, and ordered that claimant be paid compensation by Seiberling and its insurer, Royal Indemnity Company.

On appeal from that decision, three issues were submitted to a jury in the Baltimore City Court: (1) Was claimant an employee of Sun Cab? (2) Was claimant an employee of Seiberling? (3) Was claimant jointly employed by both? The jury answered 'Yes' to the first issue, and 'No' to the second and third issues. From the judgment entered upon the jury's verdict, reversing the decision of the Commission, the case was appealed here.

The Maryland Workmen's Compensation Act generally defines 'employer' as one employing workmen in extra-hazardous employments. Code Supp.1947, art. 101, sec. 67. The words 'employer' and 'employee' are the outgrowth of the old terms 'master' and 'servant.' They have been adopted by reason of the shift of the relation in general from a personal to an impersonal one, and are the terms commonly used as a better designation of the relation in the industrial age. Kourik v. English, 340 Mo. 367, 100 S.W.2d 901, 905. Thus the words 'employer' and 'employee' in the Workmen's Compensation Act are synonymous with the words 'master' and 'servant,' and the rules for determining the existence of the relation of employer and employee under the Act are the same as the rules at common law for determining the relation of master and servant. Moore v. Clarke, 171 Md. 39, 50, 187 A. 887, 107 A.L.R. 924; Harris v. Seiavitch, 336 Pa. 294, 9 A.2d 375; Cookson v. Knauff, 157 Pa.Super, 401, 43 A.2d 402.

It is generally stated that there are four elements to be considered in determining the question whether the relationship of master and servant exists. These elements are: (1) the selection and engagement of the servant, (2) the payment of wages, (3) the power of dismissal, and (4) the power of control of the servant's conduct. Thus, in Baltimore Boot & Shoe Mfg. Co. v. Jamar, 93 Md. 404, 413, 49 A. 847, this Court said that the essential elements of the contract of master and servant are that the master shall have control and direction of the employment to which the contract relates and all of its details, and shall have the right to employ at will and to discharge for proper cause those who serve him. Also, in Baltimore Transit Co. v. State, to Use of Schriefer, 184 Md. 250, 271, 40 A.2d 678, the Court said that since the right to control includes the power to discharge, the existence of the power to discharge is essential to the relationship.

In reality, the right to hire and the right to discharge are not always absolutely essential to the existence of the relationship of master and servant, although the possession of either the power to hire or the power to discharge is very strong evidence, and under some circumstances conclusive evidence, of the relationship. Actually the decisive test in determining whether the relation of master and servant exists is whether the employer has the right to control and direct the servant in the performance of his work and in the manner in which the work is to be done. Moore v. Clarke, 171 Md. 39, 50, 187 A. 887, 107 A.L.R. 924; Sgattone v. Mulholland & Gotwals, 290 Pa. 341, 138 A. 855, 58 A.L.R. 1463; Hinds v. Department of Labor & Industries, 150 Wash. 230, 272 P. 734, 62 A.L.R. 225. We admit that it would not be impossible to make a contract giving one person the power to hire and discharge, and another person the power to control the details of the work, and in such a case the person having the power to control and direct would be the master. For example, it has been held that the mere fact that a mine owner has the right to object to the employment of workmen hired by the contractor operating the mine, whenever he anticipates that they will not conform to the general rules of the mine, does not make him their master, since possession of this right does not tend to show that he had the right to exercise any control over their work. Harris v. McNamara, 97 Ala. 181, 12 So. 103. Likewise, possession of the power to discharge a workman is not conclusive in determining the existence of the relationship of master and servant, as is shown by the fact that the reservation by a contractor's employer of the power to discharge any of the servants of the contractor for incompetency or carelessness does not make them the servants of the employer. Reedie v. London & N. W. R. Co., 1849, 4 Exch. 244. But in actual practice, the master usually possesses the power to hire and the power to discharge. Generally, therefore, it is a justifiable inference of fact that the person who has the power to hire and discharge workmen is their master. Such an inference cannot be drawn in every case as a matter of law. However, it is usually, if not always, found that where these powers are mentioned as indicia of the relationship of master and servant, the possession of the power of control is also relied upon. Brow v. Boston & Albany R. Co., 157 Mass. 399, 402, 32 N.E. 362.

First, as to the hiring of claimant, it was testified that his application for employment was filled out in the Sun Cab office on the regular form used for all Sun Cab employees. He was interviewed by Seiberling's representative, who passed upon his qualifications and recommended him to Sun Cab. His application was thereupon approved by Sun Cab's personnel manager. Of course, in order to warrant payment of compensation under the Workmen's Compensation Act, it is essential that there should have existed at the time of the injury a contract of employment between the alleged employer and the injured workman. Parker v. Travelers' Insurance Co., 174 Ga. 525, 163 S.E. 159, 81 A.L.R. 472; Bowen v. Hockley, 4 Cir., 71 F.2d 781, 94 A.L.R. 856; Lind v. Nebraska National Guard, 144 Neb. 122, 12 N.W.2d 652, 150 A.L.R. 1449. In the instant case there was testimony that claimant was hired by Sun Cab with the approval of Sun Cab's personnel manager.

Secondly, as to payment of wages, it was testified that claimant's time records were kept by Sun Cab, that he was carried on Sun Cab's pay roll, and that his salary was paid every week by Sun Cab. It is accepted that the source of payment of wages is usually...