M. A. Long Co. v. State Accident Fund

Digges, J., delivered the opinion of the court. The appellee in this case, the State Accident Fund, as; compensation insurer, in its own right and for the- use of' ⁶⁴¹ Eugene Lappielly, recovered a judgment in the Baltimore City Court against the appellant, the M. A. Long Company, a hody corporate, for $16,000, under the provisions of section 58 of article 101 of the Code (Workmen’s Compensation Law). Judgment was entered upon the verdict of the jury for that amount, and the appeal is from that judgment. The appellant’s contentions which arc seriously pressed in this court and upon which it relies for a reversal, are that the lower court erred in rejecting its prayers which asked for an instructed verdict for the defendant on three grounds: First, because the provisions of article 101 made the appellant liable to the payment of compensation to Lappielly, the injured party, and therefore it was immune from a common law action based upon negligence; second, that there is no evidence in the case legally sufficient to support a verdict for the plaintiff; and, third, that the record discloses such contributory negligence on the part of the plaintiff as would bar recovery.

There are two exceptions in the record, the second of which raises the propositions of law above stated, while the first is to a ruling of the court on the admission of evidence. This first exception relates to the action of the court in permitting a question and answer of the witness Beck, who was the foreman of the employer of Lappielly, at a time when he was recalled. In his examination in chief on the day previous he was asked this question: “Q. During that day (referring to the day of the accident), liad you seen any of Long’s foremen or superintendents up there ? (.Meaning up on the job.) A. Well, I couldn’t say that I did not or did, because I don’t know that day much different from any other day, they were always around, all over the building.” When he was recalled, the witness testified without objection that the foreman of Long was almost continuously on the job: “Q. And when you say on the job, what do you mean, what job?

A. In the building, that is, at that stage of the building there was only the first floor and the second ⁶⁴² floor that we were working on. Q. Where was he ? A. He was on both the first and second floor, he was all over those two floors. Q. During this day of the accident, how many times did you see him up on the second floor, as nearly as you can tell us ?

A. I judge I seen him, well, it would only be a guess. Q. About how many times did you see the Long superintendent or foreman on the second floor during the day of this accident prior to the occurrence of the accident? (Mr. Tucker) : I object to the question. (The Court) : He can tell if he knows how many times, or he can say if they are many or few, he can answer in any way, but he cannot guess at it.

(Mr. Tucker) : The ground of our objection is because the witnses himself said it would only be a guess.” The court overruled the objection and permitted the witness to answer: “Well, I will say at least once an hour.” The purpose of this question was to' show that the appellant’s foreman or superintendent was at the scene of the accident frequently during the day of the accident, and while the witness said that he had seen the superintendent there, but, if he stated the number of times, it would only be approximate or a guess, the court permitted the witness to say how many times, if he knew, or to say whether his visits were many or few; whereupon the witness said that the superintendent or foreman was on the second floor of the building at the scene of the accident at least once an hour prior to the accident. The accident occurred about three o’clock, and from this answer of the witness the jury could conclude how frequently the superintendent was there before the accident. The witness could not say positively how many times he was there, but he was positive that he was present at least once an hour. There is no error in this ruling.

In order to intelligently discuss the questions raised by the second exception, relating to the ruling on the prayers, it is necessary to consider the facts surrounding the accident resulting in the injury for which the judgment was obtained, which we shall do as briefly as possible in narrative form. The appellant is a building contractor and had entered into a contract with Johns Hopkins University for the construe ⁶⁴³ tion of what is known as the School of Hygiene, located in Baltimore City. By the eighth article of this contract it was provided: “The owner (Hopkins) will make direct contracts for the heating and ventilating, the plumbing, drainage, etc., the electric wiring, tubing, etc., and the refrigerating equipment. The contractor (M. A. Long Co.) agrees to assume control over the contractors for the above mentioned mechanical equipment to the same extent as though they were his subcontractors, except as to the provisions of payment and financial responsibility.” Ao other provisions of this contract are necessary for the consideration of the questions involved.

Subsequently Hopkins made a contract with James McCrea & Son for the installation of the heating, ventilating, plumbing, drainage, electric wiring, tubing, and refrigerating equipment; and by article 10 of this contract it was provided. “Except as to the provisions of payment and financial responsibility, the contractor agrees to be under the control of the general building contractor to the same extent as though the former were a subcontractor to the latter.” McCrea & Son in turn contracted with the Electro-Mechanical Company, the direct employer of Lappielly, for the installation of the electrical equipment, including wiring, tubing, etc., and by section 9 of this written contract it was provided: “Except as to the provisions of payment and financial responsibility, the subcontractor agrees with the contractor to be under the control of the general building contractor to the same extent as though the former and the contractor were subcontractors to the latter.” Lappielly was employed by the EleetroMechanical Company and sent to work on the School of Hygiene building, and had been at work about two weeks before September 12th, 1924, the day upon which the accident occurred. Upon these facts rests the first contention of the appellant, to wit, that the Workmen’s Compensation Law applies, and that compensation under the act could bo awarded against the appellant, and therefore it is immune from a common law action; its contention in this respect being that the clauses of the various contracts above set forth ⁶⁴⁴ constituted the Electro-Mechanical Company a subcontractor of the Long Company, and that this being true, section 62 of article 101 provides that the employee of a subcontractor can demand and be awarded compensation either from the subcontractor, his immediate employer, or from the principal contractor, and, being entitled to receive compensation from the principal contractor, the Long Company, by force of the statute, it is not liable to a common law action based upon its negligence. If the premise here argued were correct, the authorities would sustain the result contended for; but before we can reach the conclusion of immunity from a common law action, we must find that the appellant and the employer of Lappielly occupied the relationship of principal contractor and subcontractor in respect to each other. It may be that the statute law should, under the circumstances disclosed by this record, create such a relationship; but as it now stands, it does no such thing.

Section 62 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 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. * * * 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.” Section 36 provides: “Each employee (or in case of death his family or dependents) entitled to receive compensation under this ⁶⁴⁵ article shall receive the same in accordance with the following schedule and except as in this article otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever.” Section 14 provides: “Every employer subject to the provisions of this article, shall pay or provide as required herein compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment without regard to fault as a cause of such injury. * * * The liability prescribed by the last preceding paragraph shall be exclusive, except that if an employer fails to secure the payment of compensation for his injured employees and their dependents as provided in this article, an injured employee or his. legal representative in case death results from the injury, may, at his option, elect to claim compensation under this article, or to maintain an action in the courts for damages oil account of such injury.” The effect of these provisions of article 101 is to give to a principal contractor, under conditions set forth in section 62, the status of an employer under the act. The question, therefore, is, are the facts of the present case sufficient to constitute the Long Company the statutory employer of Lappielly ? It is clear they do not. The meaning of section 62 is that, in order to create a principal contractor the statutory employer of a workman of a subcontractor, the subcontractor must be engaged in the work or a portion of the work which the principal contractor agreed to perform.

Or, in other words, to create the principal contractor a statutory employer he must have contracted in the first instance to do the work himself, and subsequently sublet the whole or a portion of it to someone else. Under such circumstances the employees of the person or corporation to whom the contract or a portion thereof is sublet become the statutory employees of the principal contractor. We can arrive at no other conclusion from the language employed in the act, even if it had not been previously so interpreted by this court. In the case of State v. Bennett Bldg.

Co., 154 Md. 159 , Judge ⁶⁴⁶ Parke, speaking for the court, said: “Although acting independently of the other, the principal contractor and the subcontractor, with his workmen employed in the execution of the work, were each, in his own separate capacity, co-operating towards the execution of the whole of a particular work which the principal contractor had promised to perform; and the liability of the principal contractor to pay compensation to the employees of the subcontractor is confined to only these employees whn were actually engaged in the execution of the whole or a portion of that one piece of work at the time of injury. It is this necessary employment of the employees of the subcontractor upon the piece of work which the principal contractor has agreed to perform that forms the basis of the statutory relation between the workman and the principal contractor, and, although it does not establish the relation of master and servant, as known to the common law, because of the intervention of the subcontractor as the workman’s master, yet the act creates a status which for the purpose of the act is that of employer and employee, as is explicit in the provision of section 62 that the principal contractor must pay compensation ‘as if that workman had been immediately employed by him.’ ” Applying the test set up by the statute and laid down in an opinion of this court interpreting the statute, do the facts of this case establish between Long and Lappielly the relationship of statutory employer and employee? Clearly they do not, for the reason that Lappielly’s immediate employer, the Electro-Mechanical Company, was not engaged in doing-work which the Long Company had contracted or agreed to perform; but on the contrary, there was no contractual obligation on Long’s part to do the work being done by Lappielly’s immediate employer. It is undoubtedly true that the Long- Company, by the clauses of the various contracts herein set forth, had general supervision over all other contractors working on the School of Hygiene to the same extent as if they were his subcontractors, with the exception of liability for payment and financial responsibility; but these provisions do not bring about the relationship required ⁶⁴⁷ by the statute to constitute Long the statutory employer of Lappielly.

Neither clo we think it was intended by the parties that the relationship of contractor and subcontractor should exist any further than giving to the Long Company such supervision over the other contractors on the work as would enable it to have the whole work conducted orderly and without confusion. Be this as it may, it is certainly clear that the Long Company did not contract to perform the electrical wiring work, and in the absence of its liability to do that work it cannot be held to be the statutory employer of Lappielly. The appellant relies upon Catalano v. Corp., 255 Mass. 605 , and Bindbeutel v. Willcut & Sons Co., 244 Mass. 195 . Upon an examination of these cases we are of the opinion that they go no further than this court has done in the case of State v. Bennett Bldg.

Co., supra. In those cases it was not disputed that the relationship was that of principal and subcontractor, but we do not interpret them as deciding that independent contractors engaged in the common enterprise of constructing a building are immune from a common law suit, for injuries resulting from their negligence, by an employee of another contractor, because said employee has been awarded compensation from his immediate employer. If they did, the language of our statute and the former decision of this court would prevent us from following any such interpretation. The School of Hygiene was being constructed of steel and reinforced concrete throughout, including the doors.

It fronts 180 feet north and south on Wolfe Street and is in the shape of a letter “E,” having three wings, one at the north end, one at the south end, and one in the center. The depth of the main building, exclusive of the wings, throughout its entire length is 51 feet 4 inches; the depth of the north and south wings is 27 feet, and the center wing 35 feet 6 inches; so that the depth at the northern and southern ends, including the wings, is 78 feet 4 inches, the center wing, together with the main building, being 86 feet 10 inches in depth. Lappielly was employed by the Electro-Mechanical Company, and was injured by being precipitated from a ⁶⁴⁸ place on the second floor near the center of the center wing to the floor below, about 3 o’clock in the afternoon of September 12th, 1924, at which time the building was in the course of construction. The method of construction, as shown by the record, is that, after the steel framework of the building is up> or up for a certain number of floors, a temporary forming is then erected preparatory to pouring the concrete, the purpose of this forming being to hold the concrete until it hardens or sets.

After the steel work is in