North Chesapeake Beach Land & Improvement Co. v. Cochran

Offutt, J., delivered the opinion, of the Court. Maurice T. Cochran, while engaged in driving piles for the construction of a pier on the property of the North Chesapeake Beach Land and Improvement Company, at North Beach on the Chesapeake Bay in Calvert County, Maryland, was, on October 29th, 1926, “caught in the working cable while he was working with the engine” and severely injured. On the fifteenth of the following July he filed with the State Industrial Accident Commission a claim for compensation against the North Chesapeake Beach Land and Improvement Company and John W. Hayes, as employers. These two respondents' disputed the claim on the ground that, at the time the accident occurred, the claimant was not employed by them, but was at work as an independent contractor, and was not within the scope of the workmen’s compensation statute.

A hearing was had on that issue, and at its conclusion the claim was disallowed. The claimant thereupon appealed to the Circuit Court for Calvert County, where the case was tried before the court and a jury on the following issues, to wit: “1. Was the claimant, Maurice T. Cochran at the time of the injury to him on October 29th, 1926, an independent contractor with respect to the work then being done by him ? “2. Was the claimant, Maurice T. Cochran, at the time of the injury to him on October 29th, 1926, an employee of ⁵²⁷ the Rorth Chesapeake Beach Land and Improvement Company ?” The verdict and judgment at that trial being for the claimant on those issues, the defendants took this appeal.

In connection with those issues to which we have referred, the claimant offered evidence which tended to prove the following facts, which for brevity, will be stated in narrative form: Whilst Cochran, who was a carpenter and builder, was engaged in supervising tire construction of a shod on appellant’s land, be was approached by John W. Hayes, its president, who told him that “ho” proposed to build a pier out over tho waters of the Chesapeake Bay, and asked Cochran if he could drive piles. Cochran said that he could if he had anything to drive them with, and he and Hayes then discussed the terms upon which he would undertake to drive the. piles for the construction of the proposed pier. As a result of that discussion Hayes agreed to pay either $3 or $3.50 per pile for each pile driven by Cqchran, to furnish all material needed for the construction of a pile driver,, and, when the actual work of driving the piles began, to furnish two or more men as needed to assist Cochran in that work. Cochran on his part agreed to furnish all labor used in constructing the pile driver, and to pay for it out of the contract price of $3 per pile, and, when the actual work of driving the piles began, to furnish and pay two men to assist in that work, and to drive as many piles as Ur.

Hayes wanted, in whatever manner he directed, as “long as” he “could make wages at $3 per pilo.” Later he was informed by Hayes that he was ready to start work on the pier, that the material for the pile driver was ready, and directed to inspect an old pile driver and “copy that in building a new one,” and was given a sketch or plan of tho proposed pier. Shortly after that he began the construction of the pile driver, and, while engaged in that work, Hayes criticized its construction, and suggested a change which Cochran made. Upon its completion he was aided in setting it up by employees of Hayes. When the machine was ready for operation and Cochran ⁵²⁸ was ready to begin driving piles, he was told to wait until Mr. Hayes arrived.

He did wait, and when Hayes arrived he told him, Cochran, how deep i» drive the piles, and suggested that he should make the platform wider. When the work was actually begun, it was found that certain rollers would be needed, and Hayes told Cochran where to get them, and he went, with men regularly employed by Hayes, in the company’s truck, to get them. Soon after the work started, the pile driver slipped and fell into the water, and Hayes’ employees and teams and tractor helped to replace it. As a result of that accident the pile driver was damaged, and Hayes told Cochran to secure duplicates of the damaged parts, and also certain necessary “tackle” to repair it.

It was repaired and work resumed, and on the afternoon of the day on which work was resumed, Hayes’ foreman and two men, presumably employees of his, helped Cochran to operate it and drive piles. Cochran had no fixed time for going to work or stopping, and he paid the men employed by him. At some time during the progress of the work, Hayes gave Cochran a check for $100, “out of which he could pay the men,” and he did pay his men out of that fund, and also paid for the gears and tackle purchased for the repair of the machine from it. He drove altogether about twelve or fifteen piles prior to his injury.

For the defendant there was evidence tending to prove that Hayes, acting for the North Beach Improvement Company, received two bids for driving the piles, one of $4 per pile from a Mr. Hartge, and one of $3.50 from Cochran, and testified that “he saw Mr. Cochran, and closed the contract with him on the basis of $3.50 per pile, all piles to be furnished and delivered by his company, Mr. Cochran to do all of the work; that Cochran was to be furnished the materia] with which to build a pile driver, all of the expense in connection therewith to be borne by Cochran; that Cochran built the pile driver and began driving the piles one Saturday in October, 1926, at which time, he, the witness, was present; that he called Cochran’s attention to the platform of the pile driver as being too small and Cochran said he would remedy ⁵²⁹ it; that he, the witness, had nothing to do with the men to bo employed by Cochran in the building of the pile driver and in the driving of the piles, and that he had nothing to do with the wages to be paid these men. That the Sunday following the Saturday that the work of driving the piles began by Cochran, he, the witness, left for a trip to New Jersey and did not return to his home in Washington until October 26th; that upon his return, he learned for the first time of the accident what had happened to Cochran; that he left with his brother a cheek for $100 to be given to Cochran as a payment on account, and also left with his brother a sketch of the pier to be built and the piles to be driven, according to the sketch; that the check for $100 was intended as a payment on account under the contract with Cochran for the driving of the piles at $3.50 per pile. * * * That he also left with his secretary several blank checks to be filled in and given to Cochran in amounts to be based on the price of $3.50 per pile for the piles, as and when driven; that he had nothing to do with the work except to furnish the piles, and he left orders with his men to keep Cochran supplied with piles; that he exercised no supervision over the work and was absent from October 19th to October 26th; that he did make some suggestions to Cochran about the length of the leads.” At the close of the claimant’s case the defendants offered a demurrer prayer, which was refused. They then proceeded with their own case and called witnesses. The effect of that course was to waive any objection to the court’s ruling in respect to that prayer.

Wilson Amusement Co. v. Spangler, 143 Md. 98 . At the conclusion of the whole case the claimant offered seven prayers, of which the fifth and sixth were granted, the seventh conceded, and the others refused; the defendants offered two prayers, of which the second was granted and the first refused. No exception was noted to the refusal of the defendant’s first prayer, so that the only question raised by the appeal is whether the trial court erred in granting the fifth and sixth prayers offered by the plaintiff. Neither ⁵³⁰ prayer went to a recovery; the fifth submitted a definition of the term “independent contractor,” while the sixth pointed to certain facts which the jury might consider in determining whether Cochran ait the time he was injured was an independent contractor.

We know of no accurate and comprehensive definition of the term “independent contractor,” and in our opinion the defendants’ fifth prayer does not supply that want. The difficulty arises, not so much from any obscurity in the nature of the office, as from the varying significance given with entire propriety to the words used to define it in different oases. Eor words may properly mean one thing, when used in connection with one set of facts, and quite a different thing when! used in connection with other facts. Eor instance, in the claimant’s prayer, it is said that an independent contractor isi one who has contracted to “do a specific piece of work.” As an abstraction that statement, while approximately correct (31 C. J. 473), nevertheless stresses what is in many cases a minor consideration, and may or may not be accurate accordingly as we give one meaning or another to the term “specific piece of work.” Applied to* this case, if it meant driving all the piles needed for the pier, it would not be entirely accurate, for Cochran may have been an independent contractor even though he had