Wood v. Abell

Levine, J., delivered the opinion of the Court. These appeals are from judgments entered upon a jury verdict in the Circuit Court for Calvert County (Bowen, ²¹⁷ J.) in favor of appellees (plaintiffs below) against appellants (defendants below). Appellees’ claims are the result of a tragic accident which occurred on the site of the annual St. Mary’s County fair at Leonardtown on July 31, 1970. As a consequence of injuries suffered by Francis E. Abell (Francis) when he was run over by a tractor at that time and location, he died on August 8, 1970.

The accident took place while Francis and his brother, Donald, were digging postholes, and a tractor owned and operated by appellee, Glen L. Wood (Wood), suddenly backed up and struck Francis, who was standing to its rear. The Abells had been engaged as laborers by Wood, who was then vice president and general manager of the St. Mary’s County Fair Association, Inc. (the Association). Wood hired them pursuant to authority granted several days before the accident by the Association’s board of directors, which had decided that the fairgrounds could not be readied for the forthcoming annual event solely with volunteer labor. The Abells were to be paid by the hour and were to supply their own tools.

For the most part, they were expected to perform various odd jobs involving minor carpentry as well as cleaning and repairing wherever directed by board members. No definite understanding was reached concerning the duration of their employment, but it was generally expected that their services would be needed for approximately one or two weeks. Clearly, no decision was reached that the Abells would be employed in the future or that the j obs would be continuous. Wood, like all board members, furnished his services and sometimes his equipment as a volunteer; he was otherwise employed as an airline pilot.

He seems to have had the responsibility for supervising the entire fair operation. His position, however, as vice president and general manager of the Association was not quite as auspicious as the title might suggest. In addition to performing the duties usually associated with that office, he ap ²¹⁸ pears to have been involved in seeing to it—partly by his own physical labor—that the facilities of the fair were prepared for the annual four-day event. On the morning of July 31, 1970, the first day on which the Abell brothers were to report for duty, they appeared and initially assisted Wood in putting up some fence posts and then tearing down an old riding ring.

The latter was to be replaced by a new ring which they were to begin erecting in the afternoon. After lunch they began construction on the new ring, the first stage of which involved the digging of new post-holes ten feet apart. The plan was to position Wood’s tractor at a spot marked for each post and then use an auger to dig the hole. While they were digging the first hole, the auger went down a short distance and stopped, presumably because it had struck an abandoned piece of old post or some hardpan.

Wood, who was seated on the tractor, shouted to the Abells to push down on the auger; they did so, but without any result. With that, Wood dismounted to help them push on the auger. Just as he was about to jump from the tractor, it started backwards and, being caught off-balance, he was thrown to the ground. He tried to stop the tractor, but before he could do so, it ran over Francis who had been standing to the left rear.

Donald, who had also been in the tractor’s path on the right side, was able to leap aside in time to avoid being struck. As a result of the injuries thereby sustained, Francis died several days later, and actions were brought against the Association and Wood for wrongful death by his widow, Margaret, and his children, all of whom were adults; and by the administrator of his estate for conscious pain and suffering and funeral expenses. A motion for directed verdict aimed at the children’s claims was granted. The jury awarded the widow $20,000 and the administrator $15,000, against both defendants.

From those judgments, appellants have taken this appeal in which they raise the following points: ²¹⁹ (1) That the trial judge erred in determining that Francis was a “casual” employee within the meaning of Maryland workmen’s compensation law. (2) That the court erred in ruling that Wood was acting within the scope of his employment as an employee of the Association. (3) That the trial judge, having made a pretrial determination that the Association was entitled to assert the defense of charitable immunity except to the extent it carried any liability insurance, erred in entering judgment before making a determination of insurance coverage “without explanation or clarification regarding the extent of the . . . Association’s liability for such judgment.” (4) That the court erred in denying Wood’s motions for directed verdict made at the end of the plaintiffs’ case and at the conclusion of the entire case.

(5) That the court erred in its instructions on negligence and in reinstructing the jury on certain phases of negligence law. (6) That the court erred in refusing to submit the issue of contributory negligence to the jury. (7) That the court should have instructed the jury on the “fellow-servant” rule. In addition to the points listed above, raised by either Wood or the Association, or both, an additional issue is presented in a cross-appeal taken by appellees.

As we have noted, the trial judge made a pretrial determination that the Association was entitled to assert the defense of charitable immunity “to the extent it is not covered by liability insurance.” Although Wood did not file a “motion raising preliminary objection,” as the Association did, and as required by Rule 323b, on the day of trial he moved to amend his original plea which asserted only the general issue, so as to claim the defense of charitable immunity. The trial commenced without any ruling on the motion to amend, but at the end of the plaintiffs’ case, the trial judge extended his earlier determination ²²⁰ of the Association’s charitable immunity to Wood. That ruling is challenged by the cross-appeal. (1) Both appellants join in the contention that the trial judge erred in ruling as a matter of law that Francis was a “casual employee,” and thus that appellees could maintain a “third-party” action instead of being confined to benefits under the workmen’s compensation laws.

It is recognized by all parties that if Francis was an “employee” within the meaning of workmen's compensation law, the actions brought by appellees could not have been prosecuted. Maryland Code (1957, 1964 Repl. Vol.) Art. 101, § 67 provides in relevant part that it “shall not apply to . . . casual employees . . . .” The term “casual employee” has been considered in a number of Maryland cases as well as in many decided elsewhere. In dealing with it here, we cannot remain entirely oblivious to the fact that virtually all the reported decisions on this point we have examined rose out of workmen’s compensation claims, in which a finding of “regular employment” was essential to recovery.

Nor is the quest for a simple definition of the term “casual” aided by the fundamental principle that the Workmen’s Compensation Act is to be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes, Bayshore Industries v. Ziats, 232 Md. 167 , 192 A. 2d 487 (1963); Bethlehem-Sparrows Point Shipyard v. Hempfield, 206 Md. 589 , 112 A. 2d 488 (1955); Watson v. Grimm, 200 Md. 461 , 90 A. 2d 180 (1952); Board of Co. Comm’rs v. Fleming, 13 Md. App. 261 , 282 A. 2d 512 (1971). That this explanation for the elusiveness of a definition occurred to our predecessors is evident from the apt statement by Judge W. Mitchell Digges, for the Court, in Hygeia Ice & Coal Co. v. Schaeffer, 152 Md. 231, 238 , 136 A. 548 (1927): “An examination of the many cases on this subject discloses that not infrequently the conclu ²²¹ sion of the court can be traced to its attitude towards workmen’s compensation legislation, this attitude being an important factor in determining whether the particular court will construe the legislation under consideration liberally to effectuate its purpose, or will give such a strict construction as will tend to limit the scope of its operation. In this state the act itself requires that the courts construe its provisions liberally, and the decisions of this Court give force to this legislative mandate. Any definition must be a limitation, and therefore courts generally, either by reason of legislative mandate, or their view of the wisdom of the policy of such legislation, have refrained from giving a definition of the term 'casual employee’ which must govern in all cases, but have preferred to leave the decision of any case to be governed by its peculiar facts and circumstances.” (emphasis added) One may therefore readily understand why this Court has consistently held that, in the absence of a statutory definition, application of the term, “casual employee,” should be made according to the particular facts presented in each case, Clayburn v. Soueid, Inc., 239 Md. 331 , 211 A. 2d 728 (1965); Hygeia Ice & Coal Co. v. Schaeffer, supra; State Accident Fund v. Jacobs, 134 Md. 133 , 106 A. 255 (1919); Yelton v. Higgins, 13 Md. App. 599 , 284 A. 2d 857 (1971).

The application of this rule has led us to observe that the term “casual” as used in the Workmen’s Compensation Act, “is a word of indefinitely varied import.” Clayburn v. Soueid, Inc., supra; Moore v. Clarke, 171 Md. 39 , 187 A. 887 (1936). In urging that the trial court erred in its ruling that Francis was a “casual employee,” appellants rely heavily on Hygeia and State Accident Fund v. Jacobs, both supra, which they cite for the principle that: ²²² “The question whether an employment is casual must be determined with principal reference to the scope and purpose of the hiring rather than with sole regard to the duration and regularity of the service.” 134 Md. at 135 . In Moore v. Clarke, supra, this Court, addressing itself to what we have just quoted, said: “ [T] here are criteria which, by what seems to be the weight of authority, have been given weight in determining whether a given employment is casual or regular, such as the nature of the work ([Hygeia Ice & Coal Co. v. Schaeffer and State Accident Fund v. Jacobs, both supral), the duration of the employment, whether it is occasional, incidental, accidental, or a usual concomitant of the employer's business. ... In the two cases last cited it was held, however, that in dealing with the question greater weight was to be given to the nature of the employment than to the infrequency or duration thereof, but in those cases the court was dealing with employment which in the one case extended over a canning season, and in the other for an indefinite period which might terminate in a few days or might continue for several weeks.

In 33 A.L.R. 1463 , the annotator, after examining the cases in a number of states, reaches the conclusion that ‘No accurate statement can be made as to whether an employment for one job or a single piece of work is to be regarded as casual employment or hot. The determination of this point may be governed by the length of time contemplated, or by the nature of the contract of employment; the great majority of the cases, however, hold that such an employment, which is to last but a short time, not more than three or four days or a week, and is for a limited and temporary pur ²²³ pose, is casual.’ In Marvil v. Elliott, 164 Md. 659, 665 , 165 A. 822, 824 , while emphasizing the importance of the nature of the work as reflecting upon the casual character of the employment, the court nevertheless stressed also the duration of the employment as a factor to be considered.” 171 Md. at 53 (emphasis in original). In Clayburn v. Soueid, Inc., supra, we quoted and applied the criteria articulated in Moore. What has emerged from our prior decisions, therefore, is an elastic test for determining whether an employee is “casual” or “regular,” and the nature of the employer’s work and the scope and purpose of the hiring are merely included among the factors to be considered.

But it is equally clear from the prior cases that duration of employment is at least as important in reaching the ultimate solution. The weight given to duration of employment is best illustrated perhaps by our decision in Lupton v. McDonald, 241 Md. 446 , 217 A. 2d 262 (1966), where Judge Oppenheimer, speaking for the Court, said: “The present case presents a converse factual situation to Clayburn and Jacobs. It is far closer to East v. Skelly, 207 Md. 537 , 114 A. 2d 822 (1955), Moore v. Clarke, [supra], and Marvil v. Elliott [supra], in each of which the employee was engaged to perform a single service on a particular occasion only. In each case, we held, as a matter of law, that the employment was casual.

In Moore, we said the employment ‘was single, isolated, complete in itself, was connected with no past or future employment, and when it was finished all contractual relations between the employer and the employee ceased.’ 171 Md. at 54 . In Marvil , we pointed out that the brief service the employee was undertaking for the contractor ‘had no relation to any en ²²⁴ gagement between them in the past or future.’ 164 Md. at 665 . In the factual situation here presented, East, Moore and Marvil are controlling.” 241 Md. at 450-51 . Support for Judge Bowen’s conclusion that Francis was a “casual employee” is found in this excerpt from Wood’s testimony: “Q. And these were odd jobs that had to be done?

A. Yes. “Q. And this was pretty much a last minute decision, was it not, to have them around in case any work had to be done? A. Well, we knew we had maybe a week’s work to be done. “Q. There was no definite decision as to how long they would be employed, was there? A. No. “Q. And there was no definite decision as to whether they would be employed in the future there, was there? A. No. “Q. And was there any definite decision as to how long at all they would be employed?

A. None at all. In fact, they wouldn’t have been employed unless some Board member went down and told them, here’s this particular job, and that particular job, and went and bought the material and brought it up, and what have you. “Q. They were like on call, or something like this? A. Yes, you might say that. They weren’t doing anything at that particular time, if I remember correctly. . . .” Appellants are not helped by their heavy reliance on Larson, The Law of Workmen’s Compensation, § 51.23, from which they quote the following statement: “Behind all these decisions lies one simple thought: Maintenance, repair, painting, clean ²²⁵ ing, and the like are ‘in the course’ of business because the business could not be carried on without them, and because they are an expect-able, routine, and inherent part of carrying on any enterprise.

One cannot carry on a store business with the roof leaking and spoiling the goods on the counter. One cannot carry on a restaurant business with walls that will violate sanitary codes if allowed to become too dirty. One cannot operate a bus line without repairing the bus, or even without repairing the building in which one repairs the bus. On this general reasoning, then, the great majority of decisions have denied exemption under either type of statute for painting, window washing, repair work, maintenance, remodeling, incidental construction, clearing of land, and even moving a plant.” It is apparent that appellants have overlooked the context in which the above-quoted statement appears.

A complete reading of § 51 reveals that the statutory exclusion of “casual employees” found in Maryland’s Workmen’s Compensation Law is unlike that in most other states. In fact, § 51.12 indicates that where the statute merely states “casual employment,” “the courts have laid the principal stress on the irregular, unpredictable, sporadic, and brief nature of the work.” The point missed by appellants is that the exemption found in many state statutes provides, in addition to the employment being casual, that it also be outside the usual business of the employer. It is within the framework of such language that the statement which appellants have quoted is made, i.e., that “ [m] aintenance, repair, painting, clearing, and the like are ‘in the course’ of business. . . .” Id. at § 51.23. As a subsidiary contention, appellants urge that the question whether Francis was a “casual employee” ²²⁶ “should have at least been decided by the jury.” We do not agree.

Virtually the entire testimony on this issue came from witnesses connected with the Association, principally Wood. The determinative facts were undisputed here, and where this is so, we have held, as a matter of law, on the facts in the particular case, that employment was casual, Lupton v. McDonald; East v. Skelly; Moore v. Clarke; Marvil v. Elliott, all supra. Cf. Clayburn v. Soueid, supra.

In the “peculiar facts and circumstances” presented here, Judge Bowen was correct in ruling, as a matter of law, that Francis was a “casual employee.” (2) Contending the trial court erred in ruling as a matter of law that Wood had acted within the scope of his employment, the Association claims the evidence permitted an inference that the replacement of the posts for the riding ring with the use of the tractor “was in no way connected with his duties as a member of the Board of Directors and General Manager.” This argument, unsupported by citation of authority, is seemingly bottomed on two facts which are clearly undisputed: (1) That Wood’s services on the day of the accident “were in the nature of voluntary services;” and (2) that he was operating his own tractor at no expense to the Association. We find no merit in this contention. Neither the fact that Wood was working as a volunteer, see Restatement (Second) Agency § 225 (1958) and Seavey, Law of Agency, § 84; nor that the tractor belonged to him, Regal Laundry v. A. S. Abell Co., 163 Md. 525 , 163 A. 845 (1933); Goldsmith v. Chesebrough, 138 Md. 1 , 113 A. 285 (1921); see A. & P. Co. v. Noppenberger, 171 Md. 378 , 189 A. 434 (1937), insulates the Association from liability if, in any event, Wood was acting within the scope of his employment. As Judge Digges aptly said for the Court in Drug Fair v. Smith, 263 Md. 341 , 283 A. 2d 392 (1971), quoting with approval from Lewis v. Accelerated Express, 219 Md. 252 , ²²⁷ 255, 148 A. 2d 783 (1959) and Hopkins C. Co. v. Read Drug & C. Co., 124 Md. 210, 214 , 92 A. 478 (1914) : “ ‘The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master’s business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to be authorized by him.’ ” 263 Md. at 350 (emphasis in original).

Wood testified that the board of directors shouldered the responsibility for the overall maintenance and operation of the fairgrounds; that, as vice president and general manager, he was a member of every committee; and that it was customary for members of the building committee to erect structures. One of the other directors, Mr. Cusic, testified as follows: “Q. Now what were the scope of duties as General Manager? A. Well, General Manager of a Fair is a job, that just about takes in any activity that goes on at the Fair, such as maintenance, grounds, buildings, anything in that capacity. “Q. And you mentioned maintenance and grounds, what do you mean in that regard? A. It is set up with different committees and the Vice President usually works in any of these with any of the committees that I mentioned. * * * “Q. Do you know the duties of the General Manager of the St. Mary’s County Fair?

A. To my knowledge, the General Manager usually takes care of heading up most of the work that is to be done around the Fair Grounds, such as buildings, grounds, etc. “Q. Who does most of the work around the grounds ? A. Most of the work is done by the Directors. ²²⁸ “Q. Are there other people besides the Directors and Officers of the Fair Association who do this work? A. Sometimes, yes, Volunteers.” He also testified that it was not unusual for a director to supply a tractor and other equipment for work on the grounds, and that this was customarily done on a voluntary basis. This evidence amply supported a conclusion that Wood’s activities at the time of the accident were in furtherance of the Association’s business, “and were such as may fairly be said to be authorized by” it, Drug Fair v. Smith, supra.

Furthermore, this evidence was free of dispute. Whether a servant is acting within the scope of his employment is ordinarily a question for the jury, but this is so only if there is a factual dispute, Drug Fair v. Smith; Lewis v. Accelerated Express, both supra; Greer Lines Co. v. Roberts, 216 Md. 69, 80 , 139 A. 2d 235 (1958). Hence, Judge Bowen was correct in instructing the jury as a matter of law that the Association was liable for Wood’s negligence. (3) Upon being served with the declaration, the Association filed a “Motion Raising Preliminary Objection” whereby, in effect, it asserted that it was entitled to the defense of charitable immunity, and also that the claims were not covered by insurance.

Later, the Association moved to amend its motion by filing copies of its purported insurance policy and a letter from the insurer disclaiming coverage on the basis of a policy exclusion for “bodily injury to any employee of the insured arising out of and in' the course of his employment by the insured.” Thus, by its motion the Association contended there was no coverage at all, and that the waiver of charitable immunity contained in Code (1957, 1972 Repl. Vol.) Art. 48A, § 480 is inapplicable. The defense of charitable immunity was premised on its corporate purpose as a fair ²²⁹ association and the applicability of Md. State Fair v. Supervisor, 225 Md. 574 , 172 A. 2d 132 (1961). The motion was heard prior to the trial, together with the issue of Francis’s employment status, and after briefly holding the matter sub curia, Judge Bowen, reasoning that it was a nonprofit corporation within the meaning of Md. State Fair, supra, allowed the Association to assert the defense of charitable immunity “to the extent that it is not covered by liability insurance.” Several days later, the case came on for trial, and nowhere in the record have we found any indication that during those proceedings the Association made further reference to its defense of charitable immunity, although the trial judge briefly mentioned it when, at the end of the plaintiffs’ case, he extended the defense to cover Wood.

The jury verdict was returned on April 6, 1972, and at that time Judge Bowen announced in open court the judgments nisi in accordance with the amounts of the jury verdict. Final judgments were entered in those amounts on April 12. On May 11, the Association noted its appeal and on the same day moved to set aside the judgments, raising for the first time since Judge Bowen’s pretrial decision the point which it now asserts here regarding the entry of judgment before there was a determination of coverage. No ruling was ever made on that motion, and it is suggested that the trial court did not do so because it had lost jurisdiction by the filing of the appeals.

Rule 626, which the Association cited in the trial court, but not here, provides: “When the defense of partial immunity has been raised and determined in favor of the defendant pursuant to Section b of Rule 323 . . . and the damages awarded exceed