Wood v. Abell

• Decision Date: 13 February 1973
• Docket Number: No. 155,155
• Citation: 268 Md. 214,300 A.2d 665
• Parties: Glen WOOD, Jr. et al. v. Joseph F. ABELL, Administrator of the Estate of Francis E. Abell et al.
• Court: Maryland Court of Appeals

Page 214

268 Md. 214

300 A.2d 665

Glen WOOD, Jr. et al. v. Joseph F. ABELL, Administrator of the Estate of Francis E Abell et al.

No. 155.

Court of Appeals of Maryland.

Feb. 13, 1973.

Edward J. Gorman, Jr., Bethesda, for Glen Wood, Jr., E. Gwinn Miller, Rockville (Donahue & Ehrmantraut, Rockville, and James A. Kenney, III, Helga L. Kirst, Briscoe & Kenney, Lexington Park, on the brief), for St. Mary's County Fair Assn., Inc.

Fred R. Joseph, Hyattsville (Karl G. Feissner, William L. Kaplan, Thomas P. Smith, Andrew E. Greenwald, and Walter E. Laake, Jr., Hyattsville, on the brief), for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES and LEVINE, JJ.

LEVINE, Judge.

These appeals are from judgments entered upon a jury verdict in the Circuit Court for Calvert County (Bowen J.) in favor of appellees (plaintiffs below) against appellants (defendants below). Appellees' claims are the result of a tragic accident which occurred on the site of the annual St. Mary's County fair at Leonardtown on July 31, 1970. As a consequence of injuries suffered by Francis E. Abell (Francis) when he was run over by a tractor at that time and location, he died on August 8, 1970. The accident took place while Francis and his brother, Donald, were digging postholes, and a tractor owned and operated by appellee, Glen L. Wood (Wood), suddenly backed up and struck Francis, who was standing to its rear.

The Abells had been engaged as laborers by Wood, who was then vice president and general manager of the St. Mary's County Fair Association, Inc. (the Association). Wood hired them pursuant to authority granted several days before the accident by the Association's board of directors, which had decided that the fairgrounds could not be readied for the forthcoming annual event solely with volunteer labor. The Abells were to be paid by the hour and were to supply their own tools. For the most part, they were expected to perform various odd jobs involving minor carpentry as well as cleaning and repairing wherever directed by board members. No definite understanding was reached concerning the duration of their employment, but it was generally expected that their services would be needed for approximately one or two weeks. Clearly, no decision was reached that the Abells would be employed in the future or that the jobs would be continuous.

Wood, like all board members, furnished his services and sometimes his equipment as a volunteer; he was otherwise employed as an airline pilot. He seems to have had the responsibility for supervising the entire fair operation. His position, however, as vice president and general manager of the Association was not quite as auspicious as the title might suggest. In addition to performing the duties usually associated with that office, he appears to have been involved in seeing to it-partly by his own physical labor-that the facilities of the fair were prepared for the annual four-day event.

On the morning of July 31, 1970, the first day on which the Abell brothers were to report for duty, they appeared and initially assisted Wood in putting up some fence posts and then tearing down an old riding ring. The latter was to be replaced by a new ring which they were to begin erecting in the afternoon.

After lunch they began construction on the new ring, the first stage of which involved the digging of new postholes ten feet apart. The plan was to position Wood's tractor at a spot marked for each post and then use an auger to dig the hole. While they were digging the first hole, the auger went down a short distance and stopped, presumably because it had struck an abandoned piece of old post or some hardpan. Wood, who was seated on the tractor, shouted to the Abells to push down on the auger; they did so, but without any result. With that, Wood dismounted to help them push on the auger. Just as he was about to jump from the tractor, it started backwards and, being caught off-balance, he was thrown to the ground. He tried to stop the tractor, but before he could do so, it ran over Francis who had been standing to the left rear. Donald, who had also been in the tractor's path on the right side, was able to leap aside in time to avoid being struck.

As a result of the injuries thereby sustained, Francis died several days later, and actions were brought against the Association and Wood for wrongful death by his widow, Margaret, and his children, all of whom were adults; and by the administrator of his estate for conscious pain and suffering and funeral expenses. A motion for directed verdict aimed at the children's claims was granted. The jury awarded the widow $20,000 and the administrator $15,000, against both defendants.

From those judgments, appellants have taken this appeal in which they raise the following points:

(1) That the trial judge erred in determining that Francis was a 'casual' employee within the meaning of Maryland workmen's compensation law.

(2) That the court erred in ruling that Wood was acting within the scope of his employment as an employee of the Association.

(3) That the trial judge, having made a pretrial determination that the Association was entitled to assert the defense of charitable immunity except to the extent it carried any liability insurance, erred in entering judgment before making a determination of insurance coverage 'without explanation or clarification regarding the extent of the . . . Association's liability for such judgment.'

(4) That the court erred in denying Wood's motions for directed verdict made at the end of the plaintiffs' case and at the conclusion of the entire case.

(5) That the court erred in its instructions on negligence and in reinstructing the jury on certain phases of negligence law.

(6) That the court erred in refusing to submit the issue of contributory negligence to the jury.

(7) That the court should have instructed the jury on the 'fellow-servant' rule.

In addition to the points listed above, raised by either Wood or the Association, or both, an additional issue is presented in a cross-appeal taken by appellees. As we have noted, the trial judge made a pretrial determination that the Association was entitled to assert the defense of charitable immunity 'to the extent it is not covered by liability insurance.' Although Wood did not file a 'motion raising preliminary objection,' as the Association did, and as required by Rule 323 b, on the day of trial he moved to amend his original plea which asserted only the general issue, so as to claim the defense of charitable immunity. The trial commenced without any ruling on the motion to amend, but at the end of the plaintiffs' case, the trial judge extended his earlier determination of the Association's charitable immunity to Wood. That ruling is challenged by the cross-appeal.

(1)

Both appellants join in the contention that the trial judge erred in ruling as a matter of law that Francis was a 'casual employee,' and thus that appellees could maintain a 'third-party' action instead of being confined to benefits under the workmen's compensation laws. It is recognized by all parties that if Francis was an 'employee' within the meaning of workmen's compensation law, the actions brought by appellees could not have been prosecuted. Maryland Code (1957, 1964 Repl.Vol.) Art. 101, § 67 provides in relevant part that it 'shall not apply to . . . casual employees . . ..'

The term 'casual employee' has been considered in a number of Maryland cases as well as in many decided elsewhere. In dealing with it here, we cannot remain entirely oblivious to the fact that virtually all the reported decisions on this point we have examined rose out of workmen's compensation claims, in which a finding of 'regular employment' was essential to recovery. Nor is the quest for a simple definition of the term 'casual' aided by the fundamental principle that the Workmen's Compensation Act is to be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes, Bayshore Industries v. Ziats, 232 Md. 167, 192 A.2d 487 (1963); Bethlehem-Sparrows Point Shipyard v. Hempfield, 206 Md. 589, 112 A.2d 488 (1955); Watson v. Grimm, 200 Md. 461, 90 A.2d 180 (1952); Board of Co. Comm'rs v. Fleming, 13 Md.App. 261, 282 A.2d 512 (1971). That this explanation for the elusiveness of a definition occurred to our predecessors is evident from the apt statement by Judge W. Mitchell Digges, for the Court, in Hygeia Ice & Coal Co. v. Schaeffer, 152 Md. 231, 238, 136 A. 548, 551 (1927):

'An examination of the many cases on this subject discloses that not infrequently the conclusion of the court can be traced to its attitude towards workmen's compensation legislation, this attitude being an important factor in determining whether the particular court will construe the legislation under consideration liberally to effectuate its purpose, or will give such a strict construction as will tend to limit the scope of its operation. In this state the act itself requires that the courts construe its provisions liberally, and the decisions of this court give force to this legislative mandate. Any definition must be a limitation, and therefore courts generally, either by reason of legislative mandate, or their view of the wisdom of the policy of such legislation, have refrained from giving a definition of the term 'casual employee' which must govern in all cases, but have preferred to leave the decision of any case to be governed by its peculiar facts and circumstances.' (emphasis added)

One may therefore readily understand why this Court has consistently held that, in the absence of a statutory definition, application of the term, 'casual employee,' should be made according to the particular facts presented in each case, Clayburn v. Soueid, Inc., 239 Md. 331, 211 A.2d 728 (1965); Hygeia Ice & Coal Co. v. Schaeffer, supra; State Accident Fund v. Jacobs, 134 Md. 133, ...