Coffey v. Derby Steel Co.

Smith, J., delivered the opinion of the Court. Cole, J., concurs in Parts i, ii and iii and dissents from Part iv. Two questions are presented in this case: (1) Whether appellee Derby Steel Company, Inc., is a statutory employer under Maryland Code (1957) Art. 101, § 62 and thus immune from any liability to appellant Gary J. Coffey other than for workmen’s compensation, and (2) whether Coffey et al. established any liability to them on the part of appellee Philip E. Schafer Testing Laboratories, Inc. We shall hold that Derby is a statutory employer and that Schafer’s liability was not established. i The background Coffey was injured on the job at the construction site of the Careers Center Building at Anne Arundel County Community College on June 8, 1972. He was employed as a steel erector by The Prosser Company.

Compensation under the Workmen’s Compensation Act was paid to Coffey by Prosser’s insurer. Derby held a subcontract to furnish and erect the structural steel for the building. It contracted with Prosser to do the actual erection. Coffey and his wife sued Derby; R.T.K.L. Associates, Inc., the architect; and Schafer.

The declaration alleged, among other things, that Derby was "engaged in the design, manufacture and sale of structural steel used in buildings such as the one under construction at Anne Arundel Community College,” Coffey’s fall by which he was injured, and that this fall "was caused by the carelessness, recklessness, negligence and wanton disregard of the rights of [Coffey] by [Derby], through its agents, servants and/or employees” in a ²⁴⁴ number of regards. It was alleged that the architect failed "to use proper care in the design of steel beams,” etc. The declaration said that Schafer "was engaged [in] and undertook to perform inspection and testing work which included the responsibility to inspect and test the design and manufacture of all steel beams used in said construction by structural iron workers such as ... Coffey [ ] so that said steel beams would be free from defects and irregularities that made their use unsafe and unfit for incorporation into the building under construction,” and that Coffey’s fall "was caused by the carelessness, recklessness and negligence and wanton disregard of the rights of [Coffey] by ... Schafer [ ] through its agents, servants and/or employees” in a number of regards.

Mrs. Coffey joined in a count to recover for a loss of consortium. The Circuit Court for Anne Arundel County granted Derby’s motion for summary judgment. The trial judge made the finding required by Maryland Rule 605 a which permitted an appeal prior to the end of the whole case. The Court of Special Appeals affirmed in an unreported opinion.

The case reached us in Honaker v. W.C. & A.N. Miller Dev. Co., 285 Md. 216 , 401 A.2d 1013 (1979) (Honaker II), being consolidated for purposes of argument and opinion with the case of Dallas A. Honaker et ux. v. W.C. & A.N. Miller Development Company. We reversed and remanded for trial. We concluded the opinion by stating: The sum total of that which was before the trial judge on the motion for summary judgment is susceptible of an inference that Derby is no longer engaged in "the trade, business or occupation” of steel erection.

Accordingly, the matter should be tried so that a finding of fact may be made as to whether Derby is in the steel erection business. [Id. at 232-33.] The case was fully tried. A directed verdict was entered in favor of the architect from which no appeal has been entered. The case was submitted to the jury on issues. A substantial verdict was returned against Derby and Schafer.

The trial ²⁴⁵ judge entered judgment n.o.v. in favor of Derby and Schafer against Coffey on the ground that Coffey was contributorily negligent and as to Derby on the additional ground that Derby was Coffey’s statutory employer. Coffey appealed to the Court of Special Appeals. Because there seemed to be some misunderstanding relative to our earlier opinion, we granted Coffey’s petition for the writ of certiorari prior to the time the case was heard in the Court of Special Appeals. We shall not place our decision here as to Schafer on the ground of contributory negligence.

In the course of our discussion we shall develop such additional facts as may be requisite. As we shall develop, that which was before the trial judge on the motion for judgment n.o.v. was not a carbon copy of that which he considered on the motion for summary judgment. ii The law We have here essentially two cases, the one against Derby and the one against Schafer. Two principles of law are applicable to both cases. The first such principle is the standard for appellate review of a judgment n.o.v. We consider the evidence and the reasonable inferences to be drawn from it in the light most favorable to the party opposing the motion — here, Coffey.

Wesko v. G.E.M., Inc., 272 Md. 192, 200 , 321 A.2d 529 (1974), and Lusby v. First Nat’l Bank, 263 Md. 492, 499 , 283 A.2d 570 (1971). This has its limitations, as pointed out by Chief Judge Prescott for the Court in Gatling v. Sampson, 242 Md. 173 , 218 A.2d 202 (1966): The principle that the evidence and proper inferences therefrom must be considered in a light most favorable to the plaintiff when determining whether to take a case from the jury on the ground of no proof of primary negligence does not require the taking of isolated sentences, or parts of sentences, in the testimony, and construing them out of context, without any regard to the rest of a witness’s testimony. The testimony to establish pri ²⁴⁶ mary negligence must be credible; and that which is incredible should be disregarded. Cocco v. Lissau, 202 Md. 196 [, 95 A.2d 857 (1953)]; York Motor Express Co. v. State, 195 Md. 525 [, 74 A.2d 12 (1950)]; Olney v. Carmichael, 202 Md. 226 [, 96 A.2d 37 (1953)].

Cf. So. Md. Electric v. Blanchard, 239 Md. 481 [, 212 A.2d 301 (1965)]. [Id. at 182.] In reviewing the granting or denial of a motion for summary judgment, all inferences also must be resolved against the moving party. If the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law, then the judgment sought shall be rendered forthwith.

Maryland Rule 610 d 1. In Honaker II, 285 Md. at 231 , we pointed this out and said that there all inferences were required to be considered in a light most favorable to Coffey. The fact that the inferences there were required to be so resolved does not make the review here of the granting of judgment n.o.v. precisely the same as the review of the granting of summary judgment, however. It is true that we said in Porter v. General Boiler Casing Co., 284 Md. 402 , 396 A.2d 1090 (1979): The function of the trial judge on such a motion is said to be much the same as that which he performs at the close of all the evidence in a jury trial when motions for a directed verdict or requests for peremptory instructions require him to determine whether an issue requires resolution by a jury or is to be decided by the court as a matter of law.

Washington Homes [v. Inter. Land Dev., 281 Md. 712 ,] 716 [, 382 A.2d 555 (1978)]; Lynx, Inc. v. Ordnance Products, 273 Md. 1, 8 , 327 A.2d 502 (1974); and Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 41 , 300 A.2d 367 (1973). Moreover, "even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences ²⁴⁷ should not be made as a matter of law, but should be submitted to the trier of fact.” Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138 , 265 A.2d 256 (1970), and cases there cited. It follows, accordingly, that if there is a conflict between the inferences which may be drawn from that before the court, summary judgment is not proper. [Id. at 413.] However, as we pointed out in Berkey v. Delia, 287 Md. 302, 326 , 413 A.2d 170 (1980), quoting the opinion for the Court by Judge Emory H. Niles in Tellez v. Canton R. R., 212 Md. 423, 430 , 129 A.2d 809 (1957), "the function of the summary judgment procedure is not to try the case or to decide issues of fact.

It is merely to determine whether there is an issue of fact to be tried, and if there is none, to cause judgment to be rendered accordingly.” Such procedure is not a substitute for trial. Also, as Judge Digges pointed out for the Court in Metropolitan Mtg. Fd. v. Basiliko, 288 Md. 25, 28 , 415 A.2d 582 (1980), a trial court "ordinarily, does possess discretion to refuse to pass upon, as well as discretion affirmatively to deny, a summary judgment request in favor of a full hearing on the merits; and this discretion exists even though the technical requirements for the entry of such a judgment have been met.” For somewhat similar discussion, see Smith v. Blackledge, 451 F.2d 1201 , 1202 n.1 (4th Cir. 1971), and Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.), cert. denied, 342 U.S. 887 (1951). Credibility is not an issue to be determined on summary judgment.

In granting or denying a motion for summary judgment, a judge makes no findings of fact. Such is not the purpose of summary judgment. It is sharply contrasted with a motion for a directed verdict or a motion for judgment n.o.v., both of which test the legal sufficiency of the evidence adduced. See the discussion and cases cited by Judge Orth for the Court in Impala Platinum v. Impala Sales, 283 Md. 296, 326 , 389 A.2d 887 (1978).

The second point which is important to the case of each appellee is that a plaintiff is bound by the uncontradicted evidence he adduces, even out of the mouth of an adversary. ²⁴⁸ We said in Lusby v. First Nat’l Bank, 263 Md. 492 , 283 A.2d 570 (1971): Where it is manifest to the court upon the plaintiffs own showing in the uncontradicted evidence in the case that there is no rational ground upon which a verdict can be based for the plaintiff, it becomes the duty of the court to direct a verdict for the defendant, or, as in this case, grant a motion for a judgment n.o.v. in favor of the defendant. Stoskin v. Prensky, 256 Md. 707, 716 , 262 A.2d 48 (1970); Schaub v. Community Cab, Inc., 198 Md. 216, 223 , 81 A.2d 597 (1951); and Eisenhower v. Balto. Transit Co., 190 Md. 528, 532 , 59 A.2d 313 (1948). [Id. at 506.] To similar effect see Wesko, 272 Md. at 199 ; McCarty v. City of Baltimore, 265 Md. 423, 428 , 290 A.2d 521 (1972); Williams v. Wheeler, 252 Md. 75, 79 , 249 A.2d 104 (1969); and Trusty v. Wooden, 251 Md. 294, 297-98 , 247 A.2d 382 (1968). Relative to an adverse witness called by a party, Judge Prescott said for the Court in Proctor Electric Co. v. Zink, 217 Md. 22 , 141 A.2d 721 (1958): It is unquestionably the general rule that a person who produces a witness vouches for him as being worthy of credit, and no direct attack upon his veracity should be made by the party who produces him in the absence of surprise, hostility or deceit.

Murphy v. State, 120 Md. 229 [, 87 A. 811 (1913)]; 3 Jones, Evidence Civil Cases, (4th Ed.) secs. 853, 854. In Maryland, we have a statute, Article 35, section 9, Code (1957), which relates to adverse parties. It provides that they may be called by the opposite party and interrogated by leading questions, contradicted and impeached. Under this statute, when adverse parties have been called and their testimony not contradicted, this Court has held that the uncontradicted testimony was binding on the party who had called the opposite party.

Morris v. Hazlehurst, 30 Md. 362 [(1869)]; Mason v. ²⁴⁹ Poulson, 43 Md. 161 [(1875)]; Harrison v. Harrison, 117 Md. 607 [, 84 A. 57 (1912)]; Murphy v. Stubblefield, 133 Md. 23 [, 104 A. 259 (1918)]; Maszczenski v. Myers, 212 Md. 346 [, 129 A.2d 109 (1957)]. We think this is the settled law of Maryland today, and we have no desire to recede from any of these decisions. [Id. at 32 (emphasis in original).] See also Larsen v. Romeo, 254 Md. 220, 225 , 255 A.2d 387 (1969); Ackerhalt v. Hanline Brothers, 253 Md. 13, 22 , 252 A.2d 1 (1969); Vokroy, Adm’r v. Johnson, 233 Md. 269, 272 , 196 A.2d 451 (1964), and the Maryland cases cited in each. iii Derby Derby interposed a plea based upon Art. 101, § 62. It provides: When any person as a principal contractor, undertakes to execute any work which is a part of his trade, business or occupation which he has contracted to perform and contracts with any other person as 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 this article 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 this article, 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 is immediately employed. ²⁵⁰ Where the principal contractor is liable to pay compensation under this section, he shall be entitled to indemnity from any employer, who would have been liable to pay compensation to the employee independently of this section, and shall have a cause of action therefor against such employer. Nothing in this section shall be construed as preventing a workman from recovering compensation under this article from the subcontractor instead of from the contractor.

Whenever an employee of a subcontractor files a claim under this article against the principal contractor, the principal contractor shall have the right to join the subcontractor or any intermediate contractors as defendant or codefendant in the case. The Workmen’s Compensation Act as enacted by Chapter 800 of the Acts of 1914 was found to contain a major loophole in that an employer, by entering into a subcontract for the performance of parts of an entire project, could escape liability under the act. Accordingly, the numerous revisions embodied in Chapter 597 of the Acts of 1916 included a new section which became the present § 62. If Derby in this case is "a principal contractor” who has "undertake[n] to execute any work which is part of his trade, business or occupation,” a part of which he has contracted with some "other person as subcontractor” to perform, then under §§ 62 and 15 of the Workmen’s Compensation Act the exclusive remedy of Coffey would be under that Act.

Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 13 , 155 A.2d 691 (1959), and cases there cited. On the other hand, if Derby is not a statutory employer of Coffey, then Coffey may maintain the tort action here for alleged negligence in accordance with § 58 of the Workmen’s Compensation Act. In Honaker II we examined the background of this statute. 285 Md. at 222-25 . We pointed out that in Honaker v. W. C. & A. N. Miller Dev.

Co., 278 Md. 453 , 365 A.2d 287 (1976) (Honaker I), Judge Orth discussed for the Court a number ²⁵¹ of our prior cases including State v. Bennett Bldg. Co., 154 Md. 159 , 140 A. 52 (1928). The Court said in Honaker I: It is manifest on the face of § 62 of Art. 101, that in order to invoke its provisions there must be: (1) a principal contractor (2) who has contracted to perform work (3) which is a part of his trade, business or occupation; and (4) who has contracted with any other party as a subcontractor for the execution by or under the subcontractor of the whole or any part of such work. [Id. 278 Md. at 459-60 .] The Court quoted this in Honaker II. 285 Md. at 225 . We pointed out in Honaker I and Honaker II that the term "principal contractor” is not synonomous with "general contractor.” Honaker I, 278 Md. at 460 n.4, and Honaker II, 285 Md. at 225 .

The parties are in agreement in this case that Derby meets criteria (1), (2), and (4). The dispute is whether the work for which Derby contracted is part of its "trade, business or occupation. . . .” At trial Derby’s evidence consisted solely of placing before the court certain drawings and the like. It presented no live testimony. Because the evidence adduced by Coffey at trial differed from that which was before the Court in Honaker II on the motion for summary judgment, we shall first examine that which was before the Court then.

On summary judgment the affidavit and deposition of Frederick B. Maples were considered. By the time of trial he had retired, but for the preceding thirty years he was employed by Derby, the last fifteen years of which (including the time of the incident) he was Derby’s executive vice-president. His deposition and his affidavit indicated that the men who did the actual steel erection were employed by Prosser, the erection company. He said it was "usual practice to buy steel from the fabricator erected,” although he claimed his men had the capability of ²⁵² erecting it and said that he had subcontracted the erection here to Prosser.

He did state in his affidavit, "[I]t is a common practice for steel fabricators in the Baltimore area to enter into contracts for both the supply and erection of steel. Such practice is customary in