Bell v. Steen, Etc.

Briscoe, J., delivered the opinion of the court. Evan H. Bell, a carpenter by trade, filed a claim before the State Industrial Accident Commission of Maryland, and was awarded compensation for an injury received by him while working for E. Steen & Brothers, grain merchants in the City of Baltimore, and one of the appellees on the record now before us. ³⁸⁹ It appears that the Industrial Accident Commission, after duo notice to the employer and the II. 'S. Fidelity and Guaranty Company, insurer, investigated the claim and held “that Evan H. Bell was injured on the 18th day of October, 1917, while in the employ of E. Steen & Brother; that his injuries consisted of laceration of nose, hip and fractured rib; that said injury arose out of and in the course of his employment; that his average weekly wage was 24 dollars; that he was temporarily totally incapacitated as a result of his injury; and the insurer of said employer is the U. S. Fidelity & Guaranty Co.” Thereupon, on the 13th day of December, 1917, it was ordered by the Commission that compensation at the rate of twelve dollars per week, payable weekly, be paid to Evan II. Bell by E. Steen & Brother, employer, and U. S. Fidelity & Guaranty Co., insurer, during the continuance of his disability, not to exceed, however, the period of time and aggregate amount as provided in Section 35 of Chapter 800, Acts of the General Assembly of Maryland of 1914, said compensation to begin as the 1st day of November, 1917, and that final receipt be filed with the Commission in due time. Subsequently, upon application, the ease was reopened, and a hearing was granted upon the question of whether the claimant was an employee of E. Steen & Brothers, or an independent contractor.

Thereafter, on the 26th of January, 1918, upon the rehearing the Commission affirmed the order previously passed by it and entered a final award against the parties, as follows: “On the 13th day of December, 1917, this Commission passed an order awarding compensation to Evan H. Bell at the rate of $12 per week, payable weekly, during the continuance of his disability. Later the IT. S. Fidelity & Guaranty Company, insurer, requested a hearing on motion to reopen and introduce evidence to determine whether claimant was an employee or an independent contractor. At said hear ³⁹⁰ ing all parties were present and heard and, after due consideration, the Commission has come to the conclusion that the original order of December 13th, 1917, should be affirmed, and will pass an order to that effect. “It is, therefore, this 26th day of January, 1918, by the State Industrial Accident Commission, ordered that the order of this Commission passed in this case on the 13th day of December, 1917, be and the same is hereby affirmed.” On January 31st, 1918, the employer and insurer appealed from the final award, and the record of proceedings before the Commission was transmitted to the Superior Court of Baltimore City for trial.

It appears that, upon the first trial, before the court and a jury on the 21st of May, 1919, the jury failed to agree and were discharged. At the conclusion of the testimony on both sides, at the second trial, on March 24th, 1920, the appellants submitted the three following questions of fact to the jury for determination : “(1) Was the appellee, Evan H. Bell, an employee of the appellants, E. Steen & Bros.? “(2) Was the appellee, Evan H. Bell, a casual employee of the appellants, E. Steen & Bros. ?” and “(3) Was the appellee, Evan H. Bell, employed in a trade, business or occupation carried on by appellants, E. Steen & Bros, for pecuniary gain?” Thereupon, it appears that the court below, -at the instance of the appellants (the employers and the insurer), granted the following instruction to the jury: “The jury are instructed that as it appears from the uncontradicted evidence in this case that the appellee, Evan H. Bell, was