Warren v. Dorsey Enterprises, Inc.

Henderson, J., delivered the opinion of the Court. The appellant was injured while starting a stock car race at the Dorsey Raceway. He filed a claim for workmen’s compensation against the owner of the Raceway, Dorsey Enterprises, Inc., and Free State Stock Car Racing Association, Inc., a corporation conducting the races. The Commission entered an award against both Dorsey and Free State, finding that they were jointly and severally liable.

On appeal, the trial court affirmed the order as to Free State, but reversed it as to Dorsey. The claimant appeals here. Free State did not appeal. The appellant submits two theories of liability: (1) that Dorsey was engaged in a joint venture with Free State, and (2) that Dorsey is a statutory employer under Code (1957), Art. 101, sec. 62.

The agreement between Free State and Dorsey, introduced ⁵⁷⁷ into evidence, showed that Dorsey agreed to furnish the track, existing structures, police protection, a public-address system and announcer, an ambulance, a fire truck and a tow truck. Dorsey operated all concessions, except the actual conduct of the races. On the other hand, Free State agreed to “stage, manage and produce a program of * * * Stock Car Racing on each and every Friday during the term of this agreement.” The members of the Free State Association owned their own cars, but Free State supplied an intercom broadcast system, and engaged and paid the officials of the track, including the starter, two scorers, the pit gateman and the pit steward. Dorsey sold tickets and divided the gate receipts on the basis of 40% less taxes to Free State.

After paying its own expenses, Free State divided the balance of its share between the participating drivers, according to a scoring schedule. Free State also agreed to secure signed releases from all competitors, officials and employees of Free State, releasing Dorsey from damages arising out of the races, and to provide and maintain insurance coverage for all those signing releases. It was shown that the claimant received certain payments from that source, following the accident. Free State hired the appellant in August, 1960, to act as starter.

He was paid $25 per night. Free State furnished him lists of starters, but he furnished his own flags. On different days he worked as a starter at another track, although he was regularly employed as a mechanic by Anne Arundel County. He took his orders from Free State, but had the authority to disqualify any driver or to exercise his own judgment about starting any race.

The appellee contends that the question of joint venture was not presented below, and is not open here under Rule 885. It is true that the trial court did not mention the point specifically in his written opinion. He did, however, reverse the Commission’s finding of joint and several liability. We think a finding that Dorsey and Free State were not engaged in a joint enterprise was implicit in the trial court’s finding that they were not jointly liable.

The order reversed so much of the Commission’s decision as found that the claimant was an employee of Dorsey. It would