Winters v. Payne

• Decision Date: 10 November 1971
• Docket Number: No. 53,53
• Citation: 13 Md.App. 327,283 A.2d 807
• Parties: Walter WINTERS et al. v. Bertrand P. PAYNE.
• Court: Court of Special Appeals of Maryland

Page 327

13 Md.App. 327

283 A.2d 807

Walter WINTERS et al. v. Bertrand P. PAYNE.

No. 53.

Court of Special Appeals of Maryland.

Nov. 10, 1971.

William T. Russell, Jr., Baltimore, for Walter Winters, and W. Kennedy Boone, III, Special Asst. Atty. Gen., for Uninsured Employers Fund with whom was Francis B. Burch, Atty. Gen., on the brief for appellant.

A. Harold DuBois, of Verderaime & DuBois with whom were A. Freeborn Brown, and Brown, Brown, Lanahan & Whitfall, Bel Air, and William B. Evans, Elkton, on the brief for appellee.

Argued before MORTON, ORTH and POWERS, JJ.

MORTON, Judge.

Whether the claimant, Bertrand P. Payne, was a 'casual employee' within the meaning of the Workmen's Compensation Act, Md.Code, Art. 101, § 67(3) ¹, and, thus, excluded from its benefits, is the single issue presented in this appeal. The Workmen's Compensation Commission ruled that he was not a casual employee and this determination was affirmed by Judge H. Kenneth Mackey, sitting in the Circuit Court for Cecil County.

At the hearing before the Commission on June 12, 1970, the employer, Walter Winters, who was uninsured, testified that during the years 1967 and 1968 he engaged on a part-time basis, in the home improvement business for which he had obtained an appropriate license. He stated that during this period he was a full-time salaried employee with General Motors and that the salary represented his principal source of income. According to his records, he completed home improvement contracts for two 'jobs' in 1967, from which he grossed approximately $1,950 and netted approximately $375; and in 1968 he completed two contracts from which he grossed approximately $1,100 and netted approximately $265. This was the extent of his 'adventure into the home improvement business' which, at the time of the hearing below, he no longer pursued.

One of the four jobs, and the one on which the claimant was injured, arose out of a contract to paint the apartment building of a Mr. Woods for the sum of $820. According to the employer, he intended to paint the building on Saturdays, Sundays and on weekdays after his regular working day with General Motors. On the day before he was to begin painting, he encountered the claimant and an individual named Buckley, both of whom he had known for sometime and 'they said they had been down to the house looking for me and I asked what he (the claimant) wanted and he said he was wanting to get a job so he could earn some money to pay a couple of traffic tickets he got and if he didn't pay them he was going to get put in jail. * * * I told him I did have a job painting that house, that I was going to start on Friday, which was the next day, and if he wanted to come up and I would give him $2.00 an hour until we finished the job.'

The next morning, Friday, September 13, 1968, the claimant, Payne, and Buckley reported for work. When questioned concerning Buckley's employment, the employer stated that 'Payne wouldn't have no way to get to work if he didn't ride with Buckley. They are neighbors.' Payne and Buckley worked at the Woods' apartments all that day and the next. On Monday, September 16, 1968, at approximately 6:30 p. m., the claimant was injured when he fell from a ladder as a result of which he was hospitalized for a 'compound fracture of the leg and crushed ankle.' Buckley continued to work on the job until it was completed several days later.

By order dated July 22, 1970, the Commission found that the claimant was not a casual employee as the term is used in the Act and that at the time of the hearing he continued to suffer from a temporary total disability. Compensation was awarded at the rate of $53.33 per week dating from December 17, 1968. Additionally, the employer, as a non-insurer, was assessed the sum of $150 plus 15 percent of the award and any subsequent awards of compensation not to exceed $1,500. Md.Code, Art. 101, § 91(b).

At the hearing before the Commission, the claimant's version of the circumstances surrounding his employment differed substantially from that given by the employer. He stated that at the time of his encounter with the employer on the street he was told by the employer that in addition to the contract to paint the Woods' apartments, 'he had another job, a house and another barn to paint. * * * He had enough work to keep me busy, he told me that.' Panye further stated that at the time he went to work for Winters he was unemployed and although he agreed that he had mentioned a traffic ticket to the employer, he stated: 'That wasn't the basis of the job.'

Md.Code, Art. 101, § 67(3) which was in effect at the time of the hearing below, exempts 'casual employees' from the terms and conditions of the Workmen's Compensation Act. Although the Act contains a definition of an employer (§ 67(2)) and an employee (§ 67(3)), ² it is silent with respect to the intended meaning or definition of the term 'casual.' However, the classification has been the subject of consideration by the Court of Appeals of Maryland in a number of cases. As stated in Moore v. Clarke, 171 Md. 39, 187 A. 887, 'in ordinary usage, 'casual' while taking some color from its context, is readily understood as having a reasonably certain and definite meaning, but as used in the Workmen's Compensation Law, it is a work of indefinitely varied import.' Thus, 'the application of the term should be made in each case according to the particular facts presented.' Clayburn v. Soueid, Inc., 239 Md. 331, 211 A.2d 728.

Notwithstanding this obviously sound approach to the issue, the Court of Appeals over the years has of necessity articulated certain criteria, the absence of which or the presence of which, have been found by the Court to constitute relevant and meaningful factors in reaching a determination whether an individual is, in fact, a casual employee within the meaning of the Workmen's Compensation Act. A common thread, running throughout substantially all the cases, indicates that a principal and compelling factor is the nature and scope of the employer's business and whether the services being rendered by the employee-claimant at the time of his injury were in furtherance of, central to and being performed within the ambit of the employer's regular business.

Over half a century ago the Court of Appeals in State Accident Fund v. Jacobs, 134 Md. 133, 106 A. 255, held that an individual employed during a vegetable packing season to haul produce for a packer whenever needed, which was only occasionally, was not a casual employee within the meaning of the Workmen's Compensation Act. In so holding, the Court concluded, at 135, 106 A. at 255: 'The question whether an employment is casual must be determined with principal reference to the scope and purpose of the hiring, rather than with sole regard to the duration and regularity of the service.'

Following this decision, the Court held in Hygeia Ice and Coal Co. v. Schaeffer, 152 Md. 231, 136 A. 548, that one employed by an ice company to shingle part of a building under the direction of the company's general manager and to be compensated according to the number of squares he completed was not, as a matter of law, a casual employee. The Court stated that notwithstanding 'the duration of the employment was indefinite, possibly terminating in a few days', the repair of the ice company's building was 'essential to the successful conduct of its business' and, accordingly, concluded: 'We are unwilling to hold, as a matter of law, that the scope, purpose and nature of the employment was casual.'

While the nature of the employer's business and the relationship of the employee-claimant to the business is an important factor, it is not necessarily paramount. Another relevant ingredient would appear to be the length or duration of the employment and whether there had been any prior or intended future employment. In Marvil v. Elliott, 164 Md. 659, 165 A. 822, a dispute had arisen between the owner of a house and a contractor employed to remove the house from one site to another with respect to whose responsibility it was to saw off certain eaves from the house in order to facilitate its removal. The house owner refused to authorize a carpenter in his employ to do the work asserting it was the contractor's responsibility under his contract. The carpenter, notwithstanding, offered to do the work as an employee of the contractor and his offer was accepted. While sawing off the eaves, the carpenter was injured and sought workmen's compensation from the contractor. Although his employment in this instance would appear to be withint he scope of the contractor's regular business, the Court, nevertheless, found him to be a casual employee, asserting:

'In the present case the appellee (claimant) was allowed by a property owner for whom he was working to be engaged temporarily by a contractor in charge of other work on the same premises. Upon the completion of the task to which the appellee was thus assigned, and which would probably have required not more than two or three hours for its performance, he was to resume his work for the first employer. The brief service he was undertaking to render for the contractor had no relation to any engagement between them in the past or future. It was limited to a particular occasion beginning and ending within a short portion of a single day. In view of its restricted scope and purpose, it must be regarded as casual within the meaning of the Maryland statute.' Marvil v. Elliott, supra at 665, 165 A. at 824.

Again, in Moore v. Clarke, supra,...