L. & S. Construction Co. v. State Accident Fund

Brune, C. J., delivered the opinion of the Court. L. & S. Construction Company, Inc. (E & S) and its insurer, Globe Indemnity Company, appealed to the Circuit Court for Prince George’s County from a decision of the Workmen’s Compensation Commission. The Commission held that one George R. Addison, who was fatally injured in the course of his work, was an employee of L & S only, and not of Weygandt Engineering & Construction Company (Weygandt), or of both L & S and Weygandt, and made an award of death benefits accordingly. The case was heard in the Circuit Court by Judge Marbury, sitting without a jury.

The Circuit Court affirmed the order of the Commission and E & S and its insurer appealed to this Court. Liability for payment of Workmen’s Compensation benefits is conceded. The appellees are Weygandt and its insurer. The question is whether the decedent was at the time of his fatal injury an employee of E & S, of Weygandt, or of both, within the meaning of the Workmen’s Compensation Act.

Who is liable for the payment of the death benefits award, of course depends on the answer to this question. The case is submitted to us by stipulation of counsel on an .agreed statement of facts, pursuant to Rule 828 g of the Maryland Rules, and on the opinion and order of the Circuit ⁵⁵ Court. This Court expresses its appreciation to counsel for both sides for the succinctness of this presentation. The agreed statement (omitting three paragraphs, the contents of which have already been sufficiently covered) is as follows: “On May 4, 1957, George R. Addison was fatally injured on a job site of Weygandt * * * when a tractor operated by him and owned by E & S * * * overturned.

At the time the tractor was pulling a sheep’s foot roller owned by Weygandt. “E & S was engaged in road construction. Weygandt, at the time of the accident, was doing work involving earth moving under a contract between it and the Washington Suburban Sanitary Commission in Brentwood, Prince George’s County, Maryland. L & S was not involved in that job except to furnish a tractor and an operator thereof under the following circumstances: “Smith Asphalt (A. H. Smith) an owner of E & S required the use of a loader owned by Weygandt and in exchange for the use of the loader by Smith, E & S was told by Smith to furnish a tractor and operator to Weygandt. “The tractor could be operated only by an employee of E & S. Weygandt had the right to remove the operator of the tractor from the job at any time, but not to put one of its employees on the tractor. It had the right to request E & S to furnish another operator for the tractor. “The operator of the tractor reported to a foreman of Weygandt and the foreman signed tickets showing the number of hours the tractor and operator worked on Weygandt’s job and in turn, E & S would bill Smith Asphalt (A. H. Smith) who paid L & S. “Smith owed Weygandt for the use of a loader and this obligation was being discharged by Smith by his payments to L & S for Weygandt’s use of the tractor. “E & S was not in [the] business of renting equipment.

It had, however, rented equipment before on occasion. “Weygandt controlled the actual operation on the job and the only instruction given to the operator of the tractor by E & S was to report to Weygandt’s foreman. At the end of ⁵⁶ the day’s work the tractor would remain on the job site and in the mornings the operator would report to the job site. “It was contemplated that Weygandt had the right to use the tractor until it had completed the particular job. “The tractor operator, Addison, was hired by L & S. He was paid by E & S. E & S also deducted taxes and social security from Addison’s pay and provided Workmen’s Compensation Insurance for him. “* * * [T]he operator, Addison, was furnished for the specific purpose of operating the tractor owned by E. & S. Construction Company, Inc.” In Sun Cab Co. v. Powell, 196 Md. 572, 577 , 77 A. 2d 783 , where the question was whether the injured employee was an employee of one employer or another, the Court said: “[T]he rules for determining the existence of the relation of employer and employee under the [Workmen’s Compensation] Act are the same as the rules at common law for determining the relation of master and servant.” See also Charles Freeland & Sons, Inc. v. Couplin, 211 Md. 160 , 126 A. 2d 606 , and Snider v. Gaultney, 218 Md. 332 , 146 A. 2d 869 , each of which was a Workmen’s Compensation Act case involving the question whether the worker was an employee or an independent contractor. In each the common law rules to determine the question of employer-employee relationship were applied. “[T]he decisive test in determining whether the relation of master and servant exists is whether the employer has the right to control and direct the servant in the performance of his work and in the manner in which the work is to be done.” Sun Cab Co. v. Powell, supra ( 196 Md. 578 ). It is not impossible, as that case recognized, to make a contract under which the power to hire or discharge would be in one person and the power of control in another, and that in such case the person having the power of control would be the master.

The general rule as to control was recognized in Baltimore Transit Co. v. State, Use of Schriefer, 184 Md. 250, 265 , 40 A. 2d 678 , and the rule as stated in the Sun Cab case has been restated or recognized in a number of recent cases in this Court: Charles Freeland & Sons, Inc. v. Couplin, supra (211 Md. at ⁵⁷ 169); W. J. Dickey & Sons, Inc. v. State Tax Comm., 212 Md. 607, 612 , 131 A. 2d 277 ; Keitz v. National Paving & Contracting Co., 214 Md. 479, 491 , 134 A. 2d 296 ; Snider v. Gaultney, supra ( 218 Md. at 337 ). See also Stem v. Nello L. Teer Co., 213 Md. 132, 139-140 , 130 A. 2d 769 . Several criteria have been developed for use in applying the general rule. The Sun Cab case lists these four: (1) the selection and engagement of the servant; (2) the payment of wages; (3) the power of dismissal; and (4) the power of control of the servant’s conduct ( 196 Md. 577 -578).

Keitz v. National Paving & Contracting Co., supra ( 214 Md. at 491 ) adds a fifth test to those just stated, which is “(5) * * * whether the work is a part of the regular business of the employer.” The Keitz case then goes on to state that none of these indicia, excepting the fourth, standing alone, seems controlling. The Sun Cab case recognizes that the power to hire and discharge is not necessarily vested in the person having control. The Keitz opinion also points out, citing the Sun Cab and Freeland cases, that “it is not the manner in which the alleged master actually exercised his authority to control and direct the action of the servant which controls, but it is his right to do so that is important.” ( 214 Md. at 491 .) Cases presenting the question as to which of two employers —the “general” employer or the “special” employer, as they are sometimes called—is to be regarded as the employer of an employee in a given situation, have frequently involved vehicles and drivers furnished by the general employer to someone else. The same general principles which apply in the vehicle cases also apply in others.

Thus, in Standard Oil Co. v. Anderson, 212 U. S. 215 , the question of control was held decisive where the question was whether a winchman was the employee of the owner of the winch and of the dock on which it was situated, who was his general employer, or of a stevedore engaged in loading a ship alongside the dock. The winchman was being directed as to the actual operation of the winch by the stevedore’s foreman. The holding there was that the winchman remained the servant of his general employer. See also Stem v. Nello L. Teer Co., supra, where ⁵⁸ there was a possible question as to whether a road flagman was an employee of the general contractor on a road