East v. Skelly

Hammond, J., delivered the opinion of the Court. A free lance jockey, injured while riding in a race at Laurel, was held to be a casual employee and denied compensation by the State Industrial Accident Commission. The Circuit Court for Prince George’s County, sitting without a jury, reversed on the evidence which was before the Commission, finding that the jockey was an employee entitled to compensation. The employer and insurer appealed.

The significant facts are not in dispute and the case turns on questions of law. The evidence discloses that there are two methods used by owners and trainers of race horses for procuring the services of jockeys. One, less often used, is to employ á jockey under contract to ride any horse the employer designates; the other, the more common, is to use one of the pool of free lance jockeys, who are ready to ride for any owner or trainer who engages their services for a particular race. The racing secretary of the track arranges races a week or ten days in advance and the owner or trainer, who has a horse eligible for any of the races, arranges with the agent of a jockey — each has one — for his boy to ride that horse.

It is not necessary to designate a jockey for a horse until eight o’clock of the morning of the day of the race, and employment usually is arranged the afternoon of the day before the race, although if a horse ⁵³⁹ and a jockey are deemed unusually compatible, it may be as much as ten days before. Compensation for the ordinary race is standard. The jockey receives $20.00 in any event. If the horse he is riding runs second or wins, he receives $35.00 or $50.00, as the case may be.

The $20.00 is paid to the bookkeeper of the race track, who collects it in the padock before the race. If the horse runs second or wins, the additional $15.00 or $30.00 is deducted from the purse and paid to the jockey. The owner or trainer does not either hire the jockey directly or pay him directly. The jockey does not appear on his payroll or on any records kept by him.

Periodically, the track prepares and furnishes the owners and trainers a statement, showing payments made to the jockeys. The owner or trainer does not pay social security on a jockey. The jockey makes his own contributions. Skelly, the appellee, has had fourteen years experience as a jockey and earns some $20,000 a year.

In the six or seven months preceding the accident, he had ridden about twenty-five times a week. Ten or twelve of these races had been for East, an appellant who conducted a public stable, all on the same basis as the race here involved. Thus, Skelly had ridden for East in approximately two per cent of all of the races he had ridden in that period. Skelly also rode for many other owners and trainers.

He testified that he had been engaged to ride one or more of East’s horses in the week or ten days after the accident. East denied this, saying that he did not engage any jockey prior to the day before a race, and specifically emphasized that he had not employed Skelly for any future races. When asked how he came to engage Skelly for the race in which the jockey was injured, East said that he “* * * had a horse then, didn’t have a rider, and those jockeys employ agents, and his agent came to me to get the mount for Skelly and I told him all right.” He said it was either the same day Skelly was injured or the day before, probably the day before. As was usual, he did not see Skelly until just before the race when the horses were in the paddock, ⁵⁴⁰ when, it is customary to tell the jockey how the horse runs best.

East added that he had not had a contract jockey for some years and that it was his practice to use free lance jockeys. None of the free lance jockeys who rode for him was on his payroll nor did he keep any records on their employment or remuneration, relying entirely on the data furnished by the track. He did keep payroll and other records of his employees, such as exercise boys, grooms, stable boys and so-called “hot walkers”. He also kept records on contract riders when he employed them.

He stated that he did not pay any premiums to his Workmen’s Compensation carrier on free lance jockeys. When asked whether he submitted the race track records to the representative of the insurance company who made the annual audit of his accounts on which the premiums of the compensation policy were based, East’s reply was: “No sir. The insurance man has only requested the records from me of my own payroll.” He added that he had never kept any record of any jockey except those under contract to him, nor had he paid compensation premiums on them. It is agreed that Code, 1951, Art. 101, Sec. 66, is not applicable.

In Moore v. Clarke, 171 Md. 39 , this Court reviewed the cases and considered the arguments made by the appellee in the case at bar, and held flatly that a free lance jockey was a casual employee. Therefore, unless Moore v. Clarke is