author: Orth, C. J.,

text:
    ALLYN M. FITZGERALD et al. v. MONTGOMERY COUNTY BOARD OF EDUCATION
    [No. 954,
    September Term, 1974.]

      Decided May 1, 1975.

    The cause was argued before Orth, C. J., and Thompson and Moylan, JJ.

      D. Warren Donohue, with whom were Edith M. Gelfand and Trimm, Donohue, McDonald, Willis & McGuckian on the brief, for appellants.

      Craig S. Rice, with whom were Mclnerney, Layne, McCormick, Sullivan & Rice on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

STATEMENT OF THE CASE

An action in tort was instituted in the Circuit Court for Montgomery County by Allyn M. Fitzgerald, a minor, by her father and next friend, Thomas S. Fitzgerald, and Thomas S. Fitzgerald, individually (appellants), against the Montgomery County Board of Education (appellee) claiming damages for personal injuries to the minor and expenses incurred by the father due to appellee’s negligence. Appellee filed a general issue plea and answers to interrogatories propounded by appellants. Interrogatories propounded by appellee were not answered. Depositions of appellants, James H. Stubbings, a student, and Thomas S. Fitzgerald, Jr., Allyn’s brother, called for examination by appellee, and the deposition of Conley Jones, maintenance supervisor of the Montgomery County Public Schools, called for examination by appellants, were filed. Appellee moved for summary judgment and submitted a memorandum of points and authorities in support thereof and an affidavit by Jones. Appellants filed a memorandum in opposition to the motion. The motion was granted upon hearing and on 22 November 1974 a judgment was entered in favor of appellee for costs. Appellants noted a timely appeal.

ISSUE FOR DECISION

The issue before us is the propriety of the grant of the motion for summary judgment. We find that the motion was properly granted and affirm the judgment.

SUMMARY JUDGMENT

In an action, a party asserting a claim or a party against whom a claim is asserted may move for a summary judgment in his favor as to all or any part of the claim on the ground that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law. Maryland Rule 610 a 1. The judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 610 d 1. “The function of the summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether or not an issue of fact is to be tried and if there is none, to cause judgment to be rendered accordingly.” Salisbury Beauty Schools v. State Board, 268 Md. 32, 40. Here it is agreed that a real dispute as to material facts did not exist, so that the issue is a legal one. When there is no genuine dispute as to a material fact, the critical question for the trial court is what the ruling of law should be upon those undisputed facts. Brewer v. Mele, 267 Md. 437, 441. “In reviewing the granting of a summary judgment itself, we are concerned with whether the trial judge was legally correct.” Id.

THE UNDISPUTED FACTS

Allyn M. Fitzgerald was 6 years of age. On 15 June 1972, her father took her, her mother, her brother, age 15 years, and Stubbings, a friend of the brother, also 15 years of age, to the parking lot of Magruder High School, owned and maintained by appellee. They arrived between 6:15 and 6:30 p.m., long after school hours. The purpose of the trip was to enable the brother and his friend to ride a go-cart on the lot. There was an electric light pole on the lot, mounted on a concrete pillar about two and a half feet high. Allyn stood on this pillar. The metal cover had been removed from an opening in the pole, and protruding therefrom were three wires carrying 227 volts of electrical current. Allyn’s legs came in contact with these live wires and she received an electrical shock. Her father found her on the ground unconscious and applied mouth-to-mouth resuscitation until she regained consciousness. Her legs were burned and she was taken to the hospital. No warning had been given by appellee to appellants with respect to the exposed wires. Although Stubbings stated in his deposition he observed the exposed wires two weeks before, when he was riding a go-cart on the lot, appellee had no actual knowledge that they were exposed. Nor did appellee know that appellants were on the parking lot, it had not given them or those who accompanied them permission to use the lot for go-cart riding. None of those involved attended the school nor were they engaged in school activities when the accident occurred.

THE LAW

Determination of the propriety of the grant of the motion for summary judgment turns on the standard of care owed to a bare licensee by the owner of real property. Appellants concede that Allyn was a bare licensee, but it is immaterial in the frame of reference of our appellate review whether she was such a licensee or a trespasser, for the standard of care is the same as to each.

It was early established in this jurisdiction, consistently followed, and recently affirmed that a bare licensee or a trespasser, even one of tender years, takes the property as he finds it and is owed no duty by the owner except that he may not be wilfully or wantonly injured or entrapped by the owner once his presence is known. See, for example, Bramble v. Thompson, supra, at 521; Osterman v. Peters, 260 Md. 313, 314; Hensley v. Henkels & McCoy, Inc., 258 Md. 397, 400; Hicks v. Hitaffer, 256 Md. 659, 666; Herring v. Christensen, 252 Md. 240, 241; Mondshour v. Moore, 256 Md. 617, 619; Carroll v. Spencer, 204 Md. 387, 394. In Hicks, Smith, J. collected and categorized prior opinions of the Court of Appeals involving the rule over a period of 75 years. Since Mergenthaler v. Kirby, 79 Md. 182, decided in 1894, the Court has uniformly rejected any exception to it.

The standard of care in this jurisdiction owed by an owner of real property to a bare licensee or trespasser is essentially what is known as the Massachusetts rule, under which the owner’s sole duty is to abstain from intentional injury. In Carroll v. Spencer, supra, at 393, the Court of Appeals observed that it was made clear in Jackson v. Pennsylvania R.R., 176 Md. 1 and Duff v. United States, 171 F. 2d 846 (4th Cir. 1949) that Maryland continues to follow the substance of the Massachusetts rule. The Court said in Carroll, at 393-394:

“In the Duff case, Judge Soper said for the Court (at page 850 of 171 F. 2d): ‘Generally speaking, the owner of land in Maryland owes no duty with respect to the condition of his land to a trespasser, or even to a licensee, whose presence upon the land is known to him, except to abstain from wilful or wanton misconduct. Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436. The owner owes no duty to the trespasser or licensee to keep the premises safe or to anticipate his presence and warn him, and the trespasser or licensee acquires no right of recovery except in the case of wilful injury. Gordon Sleeprite Corp. v. Waters, 165 Md. 354, 168 A. 846; Pellicot v. Keene, 181 Md. 135, 28 A. 2d 826; Steinwedel v. Hilbert, 149 Md. 121, 131 A. 44.’ ”

Appellants recognize the rule followed in Maryland but suggest that it has been modified. They urge that the owner “must warn a licensee of hidden dangers which he knows of or ought reasonably to have known of.” They seek support in Restatement (Second) of Torts § 342 (1965) in Myszkiewicz v. Filling Stations, 168 Md. 642, in M. L. E., Negligence § 35, and in Hensley v. Henkels & McCoy, Inc., supra.

Restatement (Second) of Torts, Title B, “Liability of Possessors of Land to Trespassers”, §§ 333-339; Title C, “General Liability of Possessors of Land to Licensees and Invitees”, § § 340-341; and Title D, “Special Liability of Possessors of Land to Licensees”, § 342, contain the essence of what has been called the Michigan rule and includes the attractive nuisance doctrine. Generally, it requires that the owner of land owes the duty to a licensee on the premises to exercise ordinary care to avoid injury to the licensee who the owner knows or by exercise of ordinary care should know is in a position of peril; the fact that the presence of the licensee or trespasser is known, requires the owner to exercise ordinary care as to him. This was expressly repudiated in Jackson v. Pennsylvania R.R., supra, at 11, the Court noting that the Restatement “imposes a greater degree of care upon the owner than is enforced by the decisions of this Court.” Appellants point specifically to § 342 of the Restatement concerning dangerous conditions known to the owner. But the standard of care it imposes is simply not the law of this State with respect to bare licensees and trespassers.

Duff v. United States, supra, at 850, suggests that Myszkiewicz v. Filling Stations, supra, qualified the Maryland rule to the extent that where the owner has acquiesced in the use of the premises by a licensee and has created a new and abnormal condition which increases the danger beyond that which the licensee has reason to regard as naturally attaching to his habitual user, the owner must give notice of the change, or as stated in other cases, the owner must not entrap the licensee or change the premises so as to create new dangers not apparent without giving warning. The language in Myszkiewicz apparently stemmed from a quotation in State v. Machen 164 Md. 579, 583, from Burdick Late of Torts 548 (4th Ed.). The careful and thorough analysis in Hensley v. Henkels & McCoy, Inc. supra, effectively lays to rest any suggestion that the Maryland rule is qualified. The Court in Hensley found it apparent that neither the statement from Burdick nor the statements from the various Maryland cases were authority for the suggested type of exception to the Massachusetts rule. “Careful reading of all of those cases makes it quite plain to us that what was meant was there could be no entrapment, concealment or presentation of deceptive appearance, ‘something like fraud’, by a licensor without liability.” 258 Md. at 411. It is manifest that in the case sub judice there was no entrapment, concealment or presentation of a deceptive appearance “something like fraud”, by appellee.

We are not persuaded by M. L. E., Negligence § 35 that there is an exception to the Maryland rule as suggested. It relies on Jones v. City of Aberdeen, 138 F. Supp. 727 (D. Md. 1956) , aff’d sub nom, Jones v. U. S., 241 F. 2d 26 (4th Cir. 1957) and Myszkietvicz, both discussed in Hensley. The short of it is that the statement of the Court of Appeals in Herring v. Christensen, supra, at 241, “Since 1894 in Mergenthaler v. Kirby, 79 Md. 182, 28 A. 1065, we have uniformly rejected any exception to the rule that trespassers and bare licensees take the premises as they find them”, is as valid today as when it was made. In Weisner v. Board of Education, supra, the Court declared, at 395, that the rule regarding sovereign immunity of school boards enunciated in Weddle v. Board of School Commissioners, supra, was “too firmly established and has been too long unchanged by the Legislature in the face of repeated reminders of its role in the matter in the opinions of the Courts ... to be chan'ged judicially, assuming that it should be changed at all. If there is to be a change, we think the Legislature should make it.” The Court in Herring, at 242, found this statement equally applicable to the rule with respect to care owed bare licensees and-trespassers. It explained, id., “To adopt appellants’ position would eliminate the consistency and stability in this Court’s rulings which are necessary for our citizens to know their respective rights and obligations.” The Court did not swerve from this position as recently as Osterman v. Peters, supra, in which it quoted at length at 318 the words of McSherry, C. J. in Demuth v. The Old Town Bank of Baltimore, 85 Md. 315, 319-320, referred to in Mondshour v. Moore, supra, 256 Md. 623-624. Chief Judge McSherry, after discussing the pitfalls to be overcome in deciding cases involving great hardship, concluded:

“It is often difficult to resist the influence which a palpable hardship is calculated to exert; but a rigid adherence to fundamental principles at all times and a stern insensibility to the results which an unvarying enforcement of those principles may occasionally entail, are the surest, if not the only, means by which stability and certainty in the administration of the law may be secured. It is for the Legislature by appropriate enactments and not for the Courts by metaphysical refinements to provide a remedy against the happening of hardships which may result from the consistent application of established legal principles.”

DECISION

It is clear that upon application of the Maryland rule to the undisputed facts, the grant of the summary judgment in favor of appellee was proper. Appellants could no more take their case from under the rule in effect in this jurisdiction than could the plaintiff in Osterman or in Hensley or in the numerous other cases in which the rule has been so consistently applied. “It is our duty to apply what we understand to be the applicable law to the facts before us. It is not our duty to create the law. That is the responsibility of the General Assembly.” Hicks v. Hitaffer, supra, at 671.

The judgment of the lower court must be affirmed, and we affirm it.

Judgment affirmed; costs to be paid by appellants.

      . Damages claimed were $200,000 by Allyn and $50,000 by her father. The defense of partial sovereign immunity was not raised by appellee. See Maryland Rule 323 b. By ch. 548, Acts 1971, as amended, such defense may be raised by a board of education to any amount in excess of the limit of comprehensive liability insurance carried by it or in excess of $100,000 in the case of self-insurance. Code, Art. 77, § 56 B. By ch. 792, Acts 1974, it may not be raised in any claim of less than $100,000. For the law prior to 1971, see Weisner v. Board of Education, 237 Md. 391; Weddle v. Board of School Commissioners, 94 Md. 334.

      . A person may be upon another’s property as an invitee, a licensee, or a trespasser. An invitee is one invited or permitted to enter or remain on another’s property for purposes connected with or related to the owner’s business. A licensee is one privileged by virtue of proper consent to enter for his own purpose or convenience onto another’s property. There are two types of licensees, a bare licensee and a licensee by invitation, or social guest. A trespasser is one who intentionally and without consent or privilege enters another’s property. See Bramble v. Thompson, 264 Md. 518, 521-522, cited in Kight v. Bowman, 25 Md. App. 225.

      . In Osterman v. Peters, supra, the Court of Appeals made no exception for a child of four and one-half years. In both Herring v. Christensen, supra, and Barnes v. Housing Authority of Baltimore City, 231 Md. 147, it declined to make an exception for a three year old child. In State v. Fidelity Warehouse Co., 176 Md. 341, it was unwilling to except a mentally subnormal boy of 11 years of age.
      Maryland rejects the doctrine of attractive nuisance without qualification. Osterman v. Peters, supra, at 315.


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    ROBERT WAYNE CARTER, Infant, etc. et al. v. BALTIMORE GAS AND ELECTRIC COMPANY
    [No. 260,
    September Term, 1974.]

      Decided May 2, 1975.

      The cause was argued before Thompson, Powers and Menchine, JJ.

      Frank B. Cahn, II, with whom wasF7. Thomas W. Stahl on the brief, for appellants.

      James H. Cook, with whom were Robert A. Amos and James A. Biddison, Jr., on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

The ultimate question to be decided in this case is whether on the facts properly before it, the lower court erred in granting defendant’s motion for summary judgment. To answer the ultimate question we must determine what 'facts were properly before the court.

Suit was brought in the Circuit Court for Baltimore County on 14 August 1972 on behalf of Robert Wayne Carter, an infant, by his parents, Lance Carter and Marie Carter, as next friends, and by the parents individually, asserting a derivative claim. Baltimore Gas and Electric Company, appellee here, was named as the sole defendant. The declaration sought compensatory damages for injuries sustained by Robert, then 13, on 24 June 1972, on the Gas and Electric Company’s property. The claim of the parents was for medical expenses incurred as a result of Robert’s injuries, and for loss of his services.

In summary, the declaration alleged that the Company operated a power transformer plant at Eastern Boulevard in the Essex area of Baltimore County; that for about a year prior to the injury, neighborhood children habitually rode their motor bikes onto the Company’s property without objection; that the Company, its agents, servants and/or employees were aware and had knowledge of such activity; that about four months before the injury a cable and wood post fence was erected on the property, leaving open and unobstructed for ingress and egress a driveway entrance approximately 15 feet wide; that about four days before Robert’s injury a Vs inch wire cable was strung across this opening at a height of 36 inches from the ground, for the purpose of impeding the ingress and egress of anyone using the driveway.

The declaration further alleged that the Company was negligent in causing the cable to be placed across the driveway “in that they gave no warning of its construction, nor did they provide for its proper visibility, and did not extend any signs or signals of any nature to indicate the presence of said cable to those known to depend on said open driveway.” It further charged that the act of the Company “was a willful and wanton act in that the purpose of erecting such cable, the nature of which is that of a tripwire, without providing signals or a warning of any nature was to entrap persons known to use Defendant’s property for purposes other than the conduct of the Defendant’s business”.

Following these allegations describing the condition of the Company’s property, the declaration went on to allege that at about 3:00 P.M. on 24 June 1972 the infant plaintiff, while driving his motor bike along the trail on the Company’s property, “exercising due care and being given no warning of the danger of said cable, drove through [the] driveway which he was accustomed to being free of obstruction and was caught under the chin by said cable and knocked off of his motor bike”, and sustained serious injuries.

After a demurrer to the declaration was overruled, pleas in bar were filed, and the case was at issue on 5 January 1973. Thereafter various proceedings, consisting of interrogatories, answers, motions for production of documents, notices to take depositions, and the like, followed. All appear to relate in one way or another to preparation by the use of discovery procedures. The docket does not reflect that depositions actually were taken, nor does the record contain a transcript of any deposition.

On 1 March 1974 the Company filed a motion for summary judgment, which referred, as support for the motion, “to the attached Affidavit, Points and Authorities, and to Answers of the Plaintiff to Interrogatories”. The Carters filed an answer to the motion, asserting that “there is a genuine dispute as to material facts in this matter”. Filed with the answer was a memorandum of points and authorities, signed by counsel, but lacking the requirements of evidentiary quality.

Maryland Rule 610 prescribes the summary judgment procedure. It provides, in § d 1 in part:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The latest of the many cases in which the Court of Appeals has discussed and explained this procedure is Lynx, Inc. v. Ordnance Products, 273 Md. 1, 327 A. 2d 502 (1974). There the Court said, at 7:

“The function of the summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether or not there is an issue of fact to be tried and if there is none, to cause judgment to be rendered accordingly. Brewer v. Mele, 267 Md. 437, 298 A. 2d 156 (1972); Broadwater v. Arch, 267 Md. 329, 297 A. 2d 671 (1972); Greenwell v. American Guaranty Corp., 262 Md. 102, 277 A. 2d 70 (1971); Trustees of Broadfording Church of the Brethren v. Western Maryland Ry. Co., 262 Md. 84, 277 A. 2d 276 (1971). At the trial level, the purpose of the hearing on the motion is to decide whether a real dispute as to material facts does exist; if the pleadings, depositions, admissions and affidavits (if any) show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law, summary judgment should be granted. Salisbury Beauty Schools v. State Bd. of Cosmetologists, 268 Md. 32, 300 A. 2d 367 (1973); Brewer v. Mele, supra; Brown v. Suburban Cadillac, Inc., 260 Md. 251, 272 A. 2d 42 (1971).”

The Court said further, at 8:

“In connection with a ruling to be made on a motion for summary judgment the function of the trial court is much the same as that which it performs at the close of all the evidence in a jury trial when motions for directed verdict or requests for peremptory instructions require a decision as to whether an issue requires resolution by a jury or is to be decided by the court as a matter of law.”

How facts are to be put before the court was stated by the Court of Appeals in Guerassio v. American Bankers, 236 Md. 500, 204 A. 2d 568 (1964). It said, at 503:

“Appellee’s pleadings and affidavits set out prima facie the elements necessary to entitle it to a summary judgment as a matter of law. Thereupon, appellants were required either to discredit appellee’s averments as untrue or to specify evidence which would give rise to a triable issue of material fact. Appellants’ pleadings and affidavits do not discredit appellee’s averments as untrue. The only issue, therefore, is whether appellants have specified some opposing evidence which would raise a triable issue of material fact. Such evidence must be indicated to the court in the form of an affidavit or deposition in support of the answer to the motion stating a fact or facts which would negative the appellee’s right to a summary judgment. Maryland Rule 610 a 3; Molesworth v. Schmidt, 196 Md. 15, 20, 75 A. 2d 100.”

In discussing and applying these authorities we said in Knisley v. Keller, 11 Md. App. 269, 273 A. 2d 624, cert. denied, 261 Md. 726 (1971), at 272:

“The party opposing the motion must show by facts, which would be admissible in evidence, that there is real dispute between the parties. The dispute must be material to the outcome. Parties are required to raise whatever issues they desire to interpose to the motion at or before the time of hearing in the trial court by affidavit or deposition * * * .”

We said further, in Vanhook v. Merchants Mutual Ins. Co., 22 Md. App. 22, 321 A. 2d 540 (1974) at 26-27:

“But a court cannot rule summarily as a matter of law until the parties have supported their respective contentions by placing before the court facts which would be admissible in evidence. Brown v. Suburban Cadillac, Inc., [260 Md. 251, 272 A. 2d 42 (1971)]. Each opposing party is given ample opportunity to place before the court facts which, on the one hand, show that he is entitled as a matter of law to the ruling he seeks, or, on the other hand, show that a fact, material to the opponent’s position, is disputed. How the facts are to be placed before the court is explained in the Rule and in the cases applying the Rule.”
“It is true that Maryland Rule 610 d 1 includes ‘pleadings’ among the matters before the court upon which the court determines whether there is a genuine dispute as to any material fact. But it is clear that facts alleged in pleadings are not, by that means alone, before the court as facts for summary judgment purposes. Ordinarily, mere allegations neither establish facts, nor show a genuine dispute of fact. Melbourne v. Griffith, 263 Md. 486, 283 A. 2d 363 (1971); Wyand v. Patterson Agency, Inc., [266 Md. 456, 295 A. 2d 773 (1972)]; Davis v. Montgomery County, [267 Md. 456, 298 A. 2d 178 (1972)].”

We observed that the function of pleadings in summary judgment cases is to frame the issues, so the court may determine materiality, and perhaps to supply, by presumption or admission, the equivalent of evidence.

The evidence specified in this case by the Company to support its contentions on the motion for summary judgment is found in the affidavit of F. J. Meehan, an employee of the Gas and Electric Company, and in answers on behalf of the infant plaintiff to interrogatories, disclaiming any contention that Robert had permission to operate his motor bike on the Company’s property, or that the Company was actually aware of his presence there on the day, date and hour of the incident.

In their memorandum of Points and Authorities filed below in opposition to the motion for summary judgment, appellants concede, for the purpose of the motion, that the infant plaintiff was a trespasser or a bare licensee on the Company’s property. They refer to depositions of other minors which they say indicate that for at least a year the infant plaintiff and others rode motor bikes on the property of the Company, As we have noted, there is no deposition in the record. One of the briefs states that the filing of depositions was waived. Whatever the reason, none was before the judge below, and none is before us. The memorandum then substantially repeats the allegations of the declaration. It asserts that the Company erected a fence but left the driveway open, and that the boys continued to ride on the property and that the Company was aware that they did so.

Appellants proceed to say that two or three days before the accident the Company placed a cable across the driveway, “for the sole purpose of impeding ingress and egress of known and unknown trespassers to the property”, that there were no warning signs on the cable, and that it was virtually invisible. The declaration alleges that the placing, of the eable was-, a willful and1 wanton- act,, and C0®stitufed art entrapment.. Appellants', agree- in their memorandum that the owner of land owes- no duty to a trespasser nr- hare licensee* “except to, abstain from willfully and wantonly injuring or entrapping” him.

Nowhere did the appellants; specify to the court any fact, in the form of evidence or its equivalent, which showed or permitted an inference that the act of the Company in erecting the cable across, the driveway was motivated by a willful or wanton purpose to injure or entrap the infant plaintiff. The allegation amounts to no more than an unsupported conclusion. Indeed, they affirmatively asserted that the solé purpose of the barrier was to impede the ingress and egress of known and unknown trespassers. They agreed that the Company was not aware of the infant plaintiffs presence on the property at the time of the injury.

In sum, appellants’ opposition to the motion is founded entirely upon unsworn allegations, and upon their view of the law. They cannot succeed upon either, even if the mere alleging of facts were taken as a proper way, on a motion for summary judgment, to show an issue of material fact.

The affidavit filed with the Company’s motion supplies these material facts, which stand uncontroverted:

The Company’s property, about 200 feet wide, has transformers, known as the Eastport Substation, enclosed by a fence, located on the west side. Also erected on the property are towers which support high tension transmission wires. Along the east side is a railroad spur, at a higher elevation. The main entrance, at Eastern Avenue, was and is marked with signs reading, “No Trespassing, Private Property, Baltimore Gas and Electric Company”. A macadam road 12 feet wide and 800 feet long extends from the entrance to the locked gate leading into the area of the transformers. The Substation is unmanned, although employees routinely perform inspection and general maintenance work. There were no Company personnel on duty at the time of the incident alleged.
It was ascertained that trash and junk were being dumped on the property, and it was necessary to erect a fence to barricade the property to prevent it from becoming a public dump. On 31 January and 1 February 1972 a fence was erected, about 130 feet long, from the railroad track to a wooded area-on the west. The fence consisted of wooden posts and two strands of cable. Over a dirt pathway a cable gate was installed, between posts about 15 feet apart. This cable was secured at one end and attached with a lock at the other end. “No Trespassing” signs were installed on the gate, and on the fence at each side of the gate.
On 15 June 1972 it was found that the lock and the “No Trespassing” sign on the cable gate were missing, and the cable was down. They were restored on the same day.

The law of Maryland has been stated so explicitly and so frequently that no comprehensive review of the authorities is called for, nor would it serve any purpose. We shall refer to a few of the cases.

A very recent statement of the rule is found in Bramble v. Thompson, 264 Md. 518, 287 A. 2d 265 (1972), where Judge Digges said for the Court of Appeals, at 521:

“A bare licensee takes the property as he finds it and, like a trespasser, he is owed no duty by the owner except that he may not be wilfully or wantonly injured or entrapped by the owner once his presence is known.”

In Carroll v. Spencer, 204 Md. 387, 104 A. 2d 628 (1954), the Court said, at 395:

“The peril of a trespasser which requires the owner of property, if he is to avoid liability, to refrain from wilful injury, must be actual and immediate. It is not the mere possibility that harm will ensue from the act, or failure to act, of a trespasser who has the natural faculties and the opportunity in time and environment to avoid such harm, which will impose liability on the owner.”

The Court also said in that case, which involved a claim for injuries sustained by a boy while playing on a house under construction:

“The status of the children would not change to that of invitees because the appellees, through their foreman, knew that intruders were on the property and in a position of potential danger by virtue of the unfinished condition of the house, and did not drive them off. Acquiescence is not invitation, and at most, changes the status of the trespasser to that of bare licensee, to whom the owner owes no greater duty than to a trespasser.” At p. 393.

We quote here a part of what Judge Smith, in writing for the Court of Appeals in Hensley v. Henkels & McCoy, Inc., 258 Md. 397, 265 A. 2d 897 (1970), quoted from State v. Machen, 164 Md. 579, 165 A. 695 (1933), where Chief Judge Bond wrote, at 582:

“And the decisions in those cases have declared the familiar principle that permission or license gives leave only to take the property as the visitors find it, and that the owner or occupant undertakes no duty to those visitors who come for their own pleasure or convenience, and not at his invitation or upon inducement, express or implied, from a common advantage, except that, being aware of their presence he must not injure them wilfully or entrap them.”

See also Fitzgerald v. Montgomery County Board of Education, 25 Md. App. 709, and cases cited therein.

It is clear from the few decisions we have referred to, and the many others cited in them, that there were no facts before the court below in this case which even raised as an issue, whether the Company had breached any duty it had to Robert Carter. By their own showing, the appellants negatived any malicious intent on the part of the Company to inflict an injury willfully or wantonly upon Robert, or to entrap him. On the contrary, they showed that the barricade was erected for a perfectly proper business reason. If they showed that it was done negligently it was not enough — the law would permit no recovery without a showing of intentional harm. The facts did not meet the test.

The summary judgment was properly granted.

Judgment affirmed.

Appellants to pay costs.


author: Davidson, J.,

text:
    CLARENCE KEENE and CLINTON PEARSON, t/a Pearson & Keene Dock Builders et al. v. HAROLD ROLAND INSLEY
    [No. 411,
    September Term, 1974.]

      Decided May 2, 1975.

      The cause was argued before Morton, Davidson and Lowe, JJ.

      Lloyd A. Dreiling, with whom was David D. Patton on the brief, for appellants.
    No appearance or brief filed.for appellee.
   Davidson, J.,

delivered the opinion of the Court.

On 16 May 1970 the appellee, Harold Roland Insley (claimant), sustained serious burns and injuries at the home of Orville Pritchett when he attempted to burn a pile of brush which was preventing him from cutting the grass. On 29 May 1970 he filed a claim for compensation with the Workmen’s Compensation Commission (Commission) against the appellants, Clarence Keene and Clinton Pearson, T/A Pearson & Keene Dock Builders (partnership), and Selected Risks Insurance Company, its insurance carrier (insurer). On 14 August 1970, after a hearing, the Commission found that the partnership was not the employer of the claimant at the time of the alleged injury and that the claimant did not sustain an accidental injury arising out of and in the course of employment. The Commission disallowed the claim for compensation.

The claimant filed an appeal in the Circuit Court for Dorchester County. After a de novo hearing held on 8 April 1974, a jury, presided over by Judge C. Burnam Mace, found that the partnership was the claimant’s employer at the time of his injury and that he did sustain an accidental injury arising out of and in the course of his employment. On 26 April 1974 the partnership’s motion for judgment n.o.v. was denied. It is from this order that the partnership appeals. Here the partnership’s sole contention is that the evidence was insufficient to submit to the jury the questions of whether the partnership was the employer of the claimant at the time of the alleged injury and, if so, whether the claimant sustained an accidental injury arising out of and in the course of his employment.

In this case the evidence was sharply disputed. Viewed in the light most favorable to the claimant, however, the facts are as follows. The appellant was employed by the partnership for several years before his accident on 16 May 1970. Both partners had the right to control and direct his activities. The claimant testified that his duties included “whatever they’d tell me to do . . . whenever they needed me.” His regular duties included helping to build piers, bulkheads, dikes, boat ramps and duck blinds. He would drive pilings, go into the woods to cut logs for pilings which he would then haul out, stack lumber, hammer nails, bore holes, cut bolts and saw boards. On occasion, when directed so to do by Mr. Keene, he would cut the grass at Mr. Keene’s garage. Most of this work was performed on Monday through Friday but because the partnership work depended upon the weather the claimant frequently was unable to accrue 40 hours of compensable work during such a five day period. Often when he did not “make his hours” the claimant would be asked to perform such services as cutting and hauling logs from the woods or cutting grass at Mr. Keene’s garage on Saturdays.

The claimant was paid on an hourly basis at the rate of $2.25 per hour, by a partnership check issued to him on Fridays. No records of the number of hours worked by the claimant were kept either by him or the partnership. Clarence Keene, who mentally logged the number of hours of work performed by the claimant, would issue a partnership check which showed the total amount of money paid to the claimant, but did not show the number of hours worked. These checks were, in turn, looked at and signed by Clinton Pearson, the other partner, who knew “how much time he [the claimant] made.” The amount of the checks would then be forwarded to an accountant for payroll and bookkeeping purposes. When the claimant worked on a Saturday the number of working hours then accumulated would be carried over to the ensuing week. The claimant would be paid by a partnership check issued the following Friday.

At one time Clarence Keene had operated commercially the garage which he owned. Since the formation of the partnership approximately eight or nine years previously, he utilized the garage solely for repairing motors. as an accommodation to friends and as a social gathering place. The garage belonged solely to Keene, was not located on partnership property nor connected with partnership business in any way except for the possible storage of “some bolts, nails, things like that, cable.” A number of men in the community regarded the garage as a “hangout” where at various times they would assemble to fish nearby, cook meals and drink beer.

On 16 May 1970 the claimant’s son, Carl Insley, picked his father up at his father’s home and drove him to Keene’s garage arriving at about 9 a.m. The claimant’s son began to repair a malfunctioning motor. A number of men, including Keene, were present. At some point in time the claimant’s son informed Keene that in order to complete the repair it was necessary to have gaskets “to finish the motor up.” Keene told a man named Orville Pritchett who worked at an auto repair shop that he wanted him to go get the gaskets. Pritchett refused, saying that he had to go home and cut his grass. At this juncture the claimant started to leave in order to go down the road and get some beer. According to the claimant, Keene called him back and told him “to go down and help Orville.” The claimant got into Pritchett’s car and went with him, fully expecting, based upon his past experience in being paid for cutting Keene’s grass on Saturday, to be paid by the partnership. As stated by the claimant, “. . . Mr. Keene is the one that paid me — he is the one that sent me.”

Upon arriving at Pritchett’s house the claimant began to cut the grass with a power mower which shortly ran out of gas. As the claimant and Pritchett were getting ready to refill the lawn mower they decided to burn a big pile of brush which was “in the way of cutting the grass.” Pritchett poured some gasoline on the brush; then the claimant threw a match into the pile to ignite it. The pile of brush “blew up” from eight to 12 feet. As a result the claimant suffered serious burns and other bodily injuries.

At the hospital, Clarence Keene assured the claimant’s daughter that she did not “have a thing to worry about . . . that Orville [Pritchett] had a homeowners policy and if it didn’t cover it [the medical expenses], that he had sent my father, that he would put him on his insurance.” The claimant was never compensated for the work performed on the day of the accident either by the partnership or by Keene.

The partnership and insurer contend that the evidence was insufficient to sustain the jury’s findings. They maintain that, even when viewed in the light most favorable to the claimant, the evidence establishes that at the time of his injury the claimant, as a result of an unauthorized direction from one of the partners, was performing services for a third party, which were not a part of his regular duties and which were of personal benefit to the assigning partner rather than to the partnership’s business. They assert that under such circumstances the claimant -was not an employee of the partnership at the time of his injury, and that his injury did not arise out of and in the course of his employment.

The question of whether a claimant, directed by a person in authority to do work outside his normal duties for the private benefit of his superior is an employee acting within the scope of his employment has not previously been answered in Maryland. In 7 Schneider’s Workmen’s Compensation, § 1660 (a) (3d Ed. 1950) it is stated:

“An employee who, as a voluntary accommodation to his employer or to another, performs services outside the scope of his employment, is not within the act while performing such services. * * * But an employer may enlarge or extend the scope of the employment and an employee who, at the direction of his employer or of his superior to whose orders he is subject, performs services outside the duties of his usual employment, and performs them in consequence of the existence of the relation of employer and employee, and as incidental to the employment, is within the protection of the act while performing such services. * * * Where an employee performs services for a third party by direction of his employer, if the relation of employer and employee continues to exist between them during the period of such services, the employer is liable under the compensation act for injuries sustained by the employee while performing the task so assigned to him although he may be under the control of the third party as to the details of the work.”

Similarly, 1 Larson’s Workmen’s Compensation Law, § 27.40 (1972) states:

“When any person in authority directs an employee to run some private errand or do some work outside his normal duties for the private benefit of the employer or superior, an injury in the course of that work is compensable.
“The technical reason for these holdings is that, whatever the normal course of employment may be, the employer and/or his supervisory staff have it within their power to enlarge that course by assigning tasks outside the usual area. If they do not assign these tasks on the strength of the employer-employee relation on which compensability depends, then what is the source of authority by which the task is assigned?
“The practical reason for the rule is that any other view places the employee in an intolerable dilemma: if he complies with the order, he forfeits compensation protection; if he does not comply, he gets fired.
“Tested by these single arguments, the early cases denying compensation seem wrong.”

Again it is said in 58 Am. Jur. Workmen’s Compensation, § 231, p. 738 (1948):

“According to many authorities, however, the employee is entitled to compensation as for an injury arising out of and in the course of his employment when such injury was received in the performance of work for his employer outside the scope of his usual duty, but which the employee had been expressly ordered to do by someone authorized to direct him as to his work ...”

Finally in 99 C.J.S. Workmen’s Compensation, § 217, p. 718 (1958) reference is made to cases which hold that:

“An act directed by the employer and one which the employee performed in the good faith belief that he was following the directions of his superior are within the course of employment, although the act is beyond the scope <?f the employee’s duties. .. .”

A majority of state courts which have considered this question agree. In reaching this result various rationales are employed depending somewhat upon the wording of different state statutes.

Some courts have reasoned that the mere fact that the particular act which the claimant is requested to perform is unusual or not customarily required of an employee in that business does not result in terminating or suspending temporarily the existing status of the claimant as an employee of the employer in the usual course of his business. Whatever the normal course of employment may be, the employer and supervisory staff have it within their power to enlarge or extend the scope of employment to cover services and tasks outside the usual area.

Other courts have held that a statute which defines an employee as one who performs services for remuneration in the course of the trade, business, profession or occupation of the employer at the time of the injury, omits from coverage only those as to whom there does not exist, at the time of the injury, employment in the usual course of business of the alleged employer. When such employment does exist, an employee is not excluded because the service which he is temporarily performing for his employer at his employer’s direction is not customarily requested of employees in such employment. When such employment does exist it is sufficient that the service, which such an employee is performing when injured, grows out of and is incidental to his employment.

Some of these cases are predicated on a theory that a statute, which defines compensable accidents as only those “arising out of and in the course of employment,” does not exclude recovery by an injured employee because the service which he was temporarily performing for his employer was not one usually requested of employees in such type of employment since the compensation act “does not say ‘when doing the work he was employed to perform.’ ” Nugent Sand Co., supra, at 648. These cases reason that the language and the intent of the act are of wider scope, so as to provide coverage of employees who are performing tasks directed by their employers.

In addition some courts, relying on an estoppel theory, have found that an employer is precluded from arguing that an injury did not arise in the course of employment, if such injury was incurred while the employee was performing a job assigned by his employer. These courts rationalize that a service arises out of employment whenever the employer calls for such a service.

Maryland Code (1957, 1964 Repl. Vol., 1974 Cum. Supp.), Art. 101, § 21 (a) defines an “employer” subject to the provisions of the Workmen’s Compensation Act as:

“(1) Every person that has in the State one or more employees subject to this Act.”

Article 101, § 21 (b) defines an “employee” subject to the provisions of the Act as:

“(1) Every person, including a person under 18 years of age, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, expressed or implied . . .
“(5) Every person performing services for remuneration in the course of the trade, business, profession or occupation of an employer at the time of the injury, provided such person in relation to this service does not maintain a separate business, does not hold himself out to and render service to the public and is not himself an employer subject to this Act.”

Article 101, § 15 requires every employer subject to the provisions of the Act to:

“.. . 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 . ...” (Emphasis added.)

The Workmen’s Compensation Act should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes. State v. Richardson, 233 Md. 534, 541, 197 A. 2d 428, 431 (1964); Bethlehem-Sparrows Point Shipyard, Inc. v. Hempfield, 206 Md. 589, 594, 112 A. 2d 488, 491 (1955); Watson v. Grimm, 200 Md. 461, 472, 90 A. 2d 180, 185 (1952); Bethlehem-Fairfield Shipyard, Inc. v. Rosenthal, 185 Md. 416, 424, 45 A. 2d 79, 83 (1945); Maryland Code (1957, 1964 Repl. Vol.), Art. 101, § 63. Any uncertainty in the law should be resolved in favor of the claimant. Rosenthal, supra; Brocker Mfg. v. Mashburn, 17 Md. App. 327, 336, 301 A. 2d 501, 506 (1973); Uninsured Employment Fund v. Booker, 13 Md. App. 591, 594, 284 A. 2d 454, 456 (1971); Subsequent Injury Fund v. Chapman, 11 Md. App. 369, 376, 274 A. 2d 870, 874, aff'd mem., 262 Md. 367, 277 A. 2d 444 (1971).

Following this rule of statutory construction and the previous rationales, we now hold that whenever, by virtue of a contract express or implied, an employer-employee relationship exists between two parties, and the employer, or his agent as the employee’s superior, directs the employee to perform services outside of or beyond his customary or usual duties and/or of a nature not ordinarily required in the employer’s business for the private benefit of the employer or his agent, rather than for the benefit of the business, the order constitutes a permissible exercise of the employer’s authority to enlarge or extend the scope of employment and expands the existing employment contract. It does not create a new employment contract. Because the existing employer-employee relationship is not terminated but continues to exist while the employee is performing such work, any injury resulting from the performance of such work is compensable under the act. It would be inconsistent with the purposes of the act to relieve an employer, who directs an employee to perform an unusual task, from liability for injuries incurred while the employee was performing that task. Nor would it be consistent with the policies of the act to compel an employee to ascertain whether the task assigned lies within the scope of his customary duties and, if not, to risk being fired if he refuses to perform, or to lose the benefit of insurance coverage if he does perform.

Applying these principles to the instant case produces a clear result. Here the evidence establishes or supports a rational inference that for several years before Saturday, 16 May 1970, by virtue of an implied contract of employment, the claimant performed various duties for the partnership required in the course of the partnership’s pier and bulkheading business. During this period, the claimant had no other job, did not work alternately for any other employer, nor was he compensated in any way by anyone other than the partnership. Under this contract of employment both partners had the right to control and direct the claimant as to the type of work he was to perform, the time he was to perform it, and the place where it was to be performed. Because the availability of work depended upon the weather, the claimant was frequently unable to accrue 40 hours of work between Monday and Friday. When this occurred, and as a normal incident of claimant’s job, he would be requested to work on Saturday. On some Saturdays the partners would ask appellant to work for the partnership. On other Saturdays he would be asked to cut the grass at Keene’s garage. Whenever he performed this unusual incidental duty he was paid out of partnership funds.

On Saturday, 16 May 1970, after a week in which the claimant had not worked 40 hours, Keene directed the claimant to cut the grass at Pritchett’s house, a function which the claimant had never before been required to perform. This order, made for the personal benefit of Keene, who wanted Pritchett released from the necessity of cutting his grass so that he could run an errand for Keene, was a permissible and legitimate exercise of Keene’s authority to enlarge or extend the scope of the claimant’s employment. The fact that the claimant undertook to cut Pritchett’s grass, a service which was outside of and beyond his usual duties and not in the normal course of the partnership business, only because Keene was his employer and he reasonably anticipated, on the basis of past practice with respect to cutting grrss at Keene’s garage, that he would be paid by the partnership, and that the partnership was obliged to pay for such service, establishes that the grass cutting project was undertaken in consequence of the existence of the relationship of employer and employee and as an unusual incident of the claimant’s employment. The mere fact that cutting grass at Pritchett’s house was not his usual duty, was not previously required of him and did not redound to the benefit of the partnership business did not terminate the claimant’s status as an employee of the partnership. Rather the employer-employee relationshin continued to exist during the period in which such services were being performed. Under such circumstances the partnership was liable for the injury sustained by the claimant while performing the task assigned to him by Keene even though it was not one ordinarily assigned to him, or required for the partnership’s business and was not undertaken for the benefit of the partnership business.

The evidence was sufficient to sustain the jury’s findings that the partnership was the employer of the claimant and that the claimant’s injury arose out of and in the course of his employment. The judgment of the trial court will be affirmed.

Judgment affirmed.

Costs to be paid by appellants.

      . In determining whether a motion for judgment n.o.v. should have been .granted this Court must resolve all conflicts in the evidence in favor of the non-moving party and consider all of the evidence and inferences fairly deducible therefrom in the light most favorable to the party against whom the motion was made. Baltimore & O.R.R. v. Plews, 262 Md. 442, 449, 278 A. 2d 287. 290 (1971): I.O.A. Leasing v. Merle Thomas Corp.. 260 Md. 243. 248-49, 272 A. 2d 1, 4 (1971); see Moran v. Faberge, Inc., 273 Md. 538, 540, 332 A. 2d 11. 13 (1975); P. Flanigan & Sons v. Childs, 251 Md. 646, 653, 248 A. 2d 473, 477 (1968); Cluster v. Cole, 21 Md. App. 242, 249, 319 A. 2d 320, 324-25 (1974). Consequently, if there is any competent evidence, however slight, tending to support the claimant’s right to recover, the case should be submitted to the jury and the defendant’s motion for judgment n.o.v. denied. Belleson v. Klohr, 257 Md. 642, 646, 264 A. 2d 274, 276 (1970); Montgomery Ward & Co. v. McFarland, 21 Md. App. 501, 513, 319 A. 2d 824, 831 (1974); Miller v. Michalek, 13 Md. App. 16, 17-18, 281 A. 2d 117, 118 (1971).

      . Although the partners conceded that the claimant had worked for them for several years prior to the day of the accident, they denied vigorously that he had ever worked for the partnership on a Saturday. Mr. Keene admitted that the claimant had mowed his grass previously on Saturdays but asserted that he had never paid the claimant anything for this task except a beer to drink. Both partners testified that the claimant had never been paid for any work done on a Saturday. Finally, Mr. Keene denied that he told the claimant to go help Pritchett on 16 May 1970 or that he stated that his compensation insurance would protect the claimant in any way. The testimony that Mr. Keene directed the claimant to go with Pritchett and that he told the daughter about his insurance was corroborated by other witnesses.

      . San Antonio v. Al Izzi’s Motor Sales, Inc., 290 A. 2d 59 (R.I. 1972) (carpenter working for automobile agency ordered to do maintenance work on boss’ private property); Department of Parks v. Howard, 445 S.W.2d 438 (Ky.Ct.App. 1969) (labor foreman at park golf course told to help a park supervisor move from park land); Harry Fleming Washer Service v. Industrial Commission, 222 N.E.2d 490 (Ill. 1966) (manual laborer sent to employer’s home to do menial chores); Continental Casualty Co. v. Industrial Commission, 135 N.W.2d 803 (Wis. 1965) (plant foreman told' to carry manager’s pregnant dog upstairs in plant to old plant kennel); Sharp v. Jenkins, 367 S.W.2d 464 (Tenn. 1963) (utility man at lumberyard ordered to cut grass at employer’s home); In re Collin’s Dependents’ Case, 173 N.E.2d 641 (Mass.Sup.Jud.Ct. 1961) (employee of city water department ordered to haul 80 pound coal bags to supervisor’s residence); Nichols v. Davidson Hotel Co., 333 S.W.2d 536 (Mo.Ct.App. 1960) (hotel bellhop told to chauffeur women guests to party); Brown v. Hartford Accident & Indemnity Co., 126 So.2d 768 (La. 1960) (porter and handyman at bookbindery asked to do carpentry work on boss’ rental property); McAdams v. Canale, 294 S.W.2d 696 (Tenn. 1956) (general aide, clerk, secretary told to drive employer on personal trip); Dobson v. Standard Accident Insurance Co., 84 So. 2d 210 (La. 1955) (truck driver, handyman ordered to remove fence from employer’s residence property); Wilson & Co., Inc. v. Curry, 68 So. 2d 548 (Ala. 1953) (plant mechanic told to construct barbeque pit for supervisor’s personal use); National Surety Corp. v. Kemp, 65 So. 2d 840 (Miss. 1953) (gin operator was told to do some personal work at home of one of the company’s partners); Pridgen v. Industrial Commission, 217 P. 2d 592 (Ariz. 1950) (glazier for glass and mirror business asked to go to his boss’ private ranch and aid a veterinarian in caring for ailing calf); Moody v. Baxley, 28 So. 2d 325 (Fla. 1946) (restaurant cook told to install lock, after working hours, on employer’s farm building); Arrington v. Murray, 28 S.E.2d 19 (Vir. 1943) (service station handyman told to clean cellar floor in home of co-owner of station); Wilkerson v. Steinberg & Spielfogel, 29 A. 2d 714 (N.J. 1943), aff'g, 27 A. 2d 206 (N.J.Ct.C.P. 1942) (grocery wholesaler’s deliveryman told by foreman to move furniture for third party); Ferragino v. McCue’s Dairy, 26 A. 2d 730 (N.J. 1942) (dairy employee ordered to move piano at church); Castagna’s Case, 38 N.E.2d 63 (Mass.Sup.Jud.Ct. 1941) (highway laborer told to assist in extinguishing fire); Jackson’s Case, 20 N.E.2d 401 (Mass.Sup.Jud.Ct. 1939) (house painter employed by a trust to attend to trust realty directed to paint trustee’s personal property); Swartout v. Niagara Falls YMCA, 15 N.Y.S.2d 625 (N.Y.App.Div. 1939) (camp leader directed to participate in boxing match); Keasey v. Mitzel Bros., 5 A. 2d 631 (Pa.Super. 1939) (yardman for sand and cement company asked to paint one partner’s home); Liberty Mutual Ins. Co. v. Neal, 191 S. E. 393 (Ga.App. 1937) (mill employee injured while cutting wood as ordered on farm of mill overseer); Nugent Sand Co. v. Hargesheimer, 71 S.W.M 647 (Ky.Ct.App. 1934) (company mechanic sent, after hours, to president’s home to repair furnace); Petersen v. Corno Mills Co., 249 N. W. 408 (Iowa 1933) (company messenger boy sent to executive’s house to clean up lawn); Kern v. Southport Mill, 141 So. 19 (La. 1932) (pipefitter at cotton oil mill directed to do work at one of executive’s residences); Metzger v. Koefler, 235 N. W. 802 (Wis. 1931) (painter ordered to haul furniture to employer’s summer cottage); MacDonald v. Grand Battery and Ignition Service, 173 N. E. 886 (N.Y. 1930) (electrician while at employer’s house off hours asked to crank up boss’ car); Nygaard v. Throndson Bros., 217 N. W. 370 (Minn. 1928) (employee who worked with threshing unit asked to drive employer on errand); O’Rourke v. Percy Vittum Co., 207 N. W. 636 (Minn. 1926) (stockyard eniployee regularly sent to president’s personal farm to bring in livestock); City of Oakland v. Industrial Accident Commission, 170 P. 430 (Cal.Dt.Ct.App. 1917) (teamster at city woodyard directed to move household goods of indigent city resident). See also Schneider, supra, at § 1660 (b); Larson, supra; Annotation, Workmen’s Compensation: coverage, of industrial or business employee when performing, under orders, services for 'private benefit of employer or superior, or officer, representative, or stockholder of corporate employer, 172 A.L.R. 378 (1948).

      . Continental Casualty Co., supra; Nichols, supra; McAdams, supra; Wilson & Co., Inc., supra; National Surety Corp., supra; Pridgen, supra; Arrington, supra; Nugent Sand Co., supra; Petersen, supra; Nygaard, supra; O’Rourke, supra.

      . Harry Fleming Washer Service, supra; Moody, supra; Metzger, supra; Nygaard, supra; O’Rourke, supra. In some states there exists a statutory presumption that if an employee is directed to do a task by his employer, it falls within the usual course of the employer’s business. See Friend v. Industrial Commission, 237 N.E.2d 491, 492 (Ill. 1968); Harry Fleming Washer Service, supra; In re Collin’s Dependents’ Case, supra; Castagna’s Case, supra; Jackson’s Case, supra.

      . Department of Parks, supra; Continental Casualty Co., supra; McAdams, supra; Pridgen, supra; Ferragino, supra; Nugent, supra; Petersen, supra.

      . Brown, supra; McAdams, supra; Dobson, supra; Arrington, supra; Kern, supra.

      . As one court has said, “Had he not obeyed ... [the] claim would have been for unemployment rather than for workmen’s compensation benefits.” San Antonio, supra, at 61.

      . The partnership and insurer strenuously assert that the partnership did not select and engage the claimant to cut Pritchett’s grass and had not paid the claimant to cut Pritchett’s grass in the past. They maintain that cutting Pritchett’s grass was a function outside the scope of the partnership business and that, consequently, Keene as a partner had no authority to engage the claimant to cut Pritchett’s grass. Larson’s, supra, § 2740, at 5-265, 5-266 states:
      “The question of the actual authority of the person issuing the order is sometimes adverted to in the cases but should not be decisive. In some instances . . . there was evidence of actual authority, by custom, to use company employees for such private jobs .... But even where the order is a gross excess or even abuse of authority, surely the employee, who has no choice but to comply, should not be made to pay the price of his superior’s wrong.”
      Here the facts that the partnership had previously provided Saturday work for the claimant when he failed to accrue 40 hours of work between Monday and Friday; that some of the Saturday work provided was to cut Keene’s grass at Keene’s garage; and that the partnership paid the claimant for the hours worked on Saturday, including the hours spent cutting Keene’s grass, all support the conclusion that Keene had actual authority, by custom, to engage the claimant on behalf of the partnership to perform services for the benefit of Keene at sites other than the partnership premises. Moreover, the results in this case would not change even if Keene’s direction to the claimant was a gross excess of authority. San Antonio, supra-, Wilkerson, supra; Neal, supra.

      . The partnership and insurer vigorously assert that, because the claimant had never been paid previously to cut grass anywhere other than at Keene’s property, that the partnership was not obligated, by custom or past practice, to pay the claimant for cutting grass at Pritchett’s home and the claimant was not justified in assuming that the partnership would pay for such services. Moreover, the claimant was not paid by the partnership for cutting grass at Pritchett’s and never demanded payment for the performance of such services. They maintain that these circumstances conclusively demonstrate that the claimant was not an employee of the partnership and that his injury did not arise out of and in the course of his employment. We do not agree.
      The evidence that the partnership attempted to provide Saturday work for the claimant whenever he failed to accrue 40 hours of work between Monday and Friday, coupled with the evidence that Keene had directed the claimant to cut grass at his garage on Saturday and that the partnership had paid for such services, established that by custom Keene had authority to direct the claimant to cut grass on Saturday at sites other than property owned by the partnership and that when he so directed the claimant the partnership would pay the claimant for his services. Thus, the partnership was obligated, based upon custom and past practice, to pay for such work. Consequently, the partnership’s failure to make the payment and the claimant’s failure to make demands for the payment are immaterial with respect to the question here in issue.


author: Moore, J.,

text:
    WAYNE ROBERT FELDE v. STATE OF MARYLAND
    [No. 501,
    September Term, 1974.]

      Decided May 2, 1975.

      The cause was argued before Thompson, Gilbert and Moore, JJ.

      Allan P. Feigelson, Assigned Public Defender, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Gary Melick, Assistant Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County and John B. Wynes, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

The principal contention presented on this appeal is that the trial court erred by applying the prima facie standard of proof in making a judicial determination of voluntariness concerning appellant’s custodial confession to the fatal shooting of a fellow construction worker on November 28, 1973. Upon our review of the record, it is plain that the court did not find the inculpatory statement admissible by a preponderance of the evidence but did indeed apply the lesser standard of prima facie proof. We therefore reverse the judgment of conviction and grant appellant a new trial.

Appellant, Wayne Robert Felde, age 24, was indicted for the murder of William Blackwell, age 21, and for assault with intent to murder and/or assault upon four officers of the Prince George’s County Police Department. He was tried by a jury in the Circuit Court for Prince George’s County, the Honorable William H. McCullough presiding, and was found guilty of second degree murder and four counts of assault. The court sentenced him to a 15-year term on the second degree murder conviction and five years each on the lesser offenses, to run concurrently.

The events leading up to the appellant’s making a full and damaging statement to the police on the evening of November 28, 1973, could be found to have transpired in the following manner: at approximately 10 p.m., the police responded to 8539 Greenbelt Road to investigate reports of a fight and sounds of gunfire. When they arrived at the apartment building, a woman later identified as appellant’s wife, informed .the officers that “her husband had been involved in a fight with a man and that she had heard a shot and she thinks somebody had been shot.”

The appellant appeared briefly outside his apartment with a carbine in his hand but quickly withdrew. He then fired shots through the upper part of the door and issued a warning to the police officers: “[D]on’t come through the door. I will show you what Vietnam is like.” After the arrival of his mother on the scene, however, he threw out the rifle and surrendered. While being handcuffed, he remarked to the police: “You don’t have to worry about him. I blew his head off. He is in my bedroom closet dead.” Police Corporal Fox immediately advised him of his rights and appellant said he did not wish to make a statement. He was then transported to the office of the Bureau of Criminal Investigations in Forestville where the inculpatory statement at issue was taken by Detective James Wiseman.

At the trial, out of the presence of the jury, Detective Wiseman testified that he first read appellant the Miranda warnings from a card issued by the State’s Attorney’s office and waivers of his rights on the reverse side, to which appellant acquiesced. Detective Wiseman then obtained a police department “long” waiver of rights form and again read it to the appellant. The latter signed the form and initialed it in several places. The statement, taken while appellant was handcuffed, consisted of 19 questions and answers and was typed “verbatim” by the detective during the half-hour period from 11:20 p.m. to 11:50 p.m., at the close of which appellant read over his statement and signed it. Detective Wiseman testified that although the appellant had been drinking during the day, he was not drunk and his speech was not slurred at the time of the interrogation. He also stated that no methods of coercion or intimidation were employed.

At the beginning of the statement appellant declared: “What happened is he got shot and I shot him.” The following questions and answers thereafter appear concerning the shooting:

“Q. Why did you shoot Butch?
A. He was fighting with me in my own apartment. My wife was there but she ran out in front.”
“Q. Why were you and Butch fighting?
A. We just had a disagreement, nothing really. It was just a disagreement.
Q. How did the man, Butch, get shot?
A. We were wrestling over my rifle and I told him to leave my home and he got shot. He would not leave so he got shot.
Q. How far were you from Butch when he got shot?
A. About two or three feet. We were in my closet in the bedroom.”
“Q. What kind of gun did you use to shoot Butch with?
A. It was an Ml Carbine, .30 caliber, and the bullet consisted of 110 grains. That is the only bullet I have in my house. The rifle is used for deer hunting only.
Q. When did you load the rifle?
A. The rifle has always had its magazine inside of it but it is not chambered though.
Q. Did you put the bullet up in the chamber?
A. I am not sure. I pulled the trigger. Yes, sir, I did that.
Q. What happened after Butch got shot?
A. I dared the police to walk through the door.
Q, Why did you do this?
A. Because I knew they wouldn’t.”
“Q. How much education do you have?
A. I have about a year of college.
Q. How much have you had to drink today?
A. About nine beers (12 ounce beers).”

The appellant testified, out of the presence of the jury, and said that he “was very drunk, intoxicated, shaken up and scared” at the time he was questioned. He did not remember talking to Detective Wiseman but did recall a “Detective Nelson filling out a report,” during which time,

“I kept trying to doze off and he kept waking me up and telling me that I would remain awake until the report was finished and I kept still dozing off because I was dazy, and I remember him going to his desk and taking a blackjack out, putting it in his back pocket. I was never struck with this blackjack and not threatened with it, but it was put in his back pocket, taken out of his desk, and I think it was more or less to scare me.”

He also testified that he and the deceased, co-workers on a construction site in Suitland, had been drinking beer together, in a sojourn from bar to bar, since two o’clock in the afternoon when their workday unexpectedly ended. On cross-examination, while admitting that his signature and initials were on the statement, appellant testified that he did not recall having made the statement: “What happened is he got shot and I shot him.” He did remember, however, that he and the deceased were wrestling over his [appellant’s] gun.

Mrs. Ruby Felde, the appellant’s mother, also took the stand at the suppression stage and testified that she had gone to her son’s apartment on the evening of the “murder” because of his telephone plea shortly after 9 p.m.: “Mama, get help. I think I killed a man.” Mrs. Felde arrived at the scene and witnessed her son leaving his apartment in a condition she described as “staring like a wild man” and “drunk.” As he was placed under arrest, her son said to her, while crying: “I think I killed a man. I couldn’t help it. Mama, I couldn’t help it.” Mrs. Felde testified that she saw her son in Forestville later that evening where “he was still drunk” and “still acted like he did not know what he was doing.” She was a registered nurse who had worked for 9 years in the emergency room at Prince George’s Hospital where she treated a “lot of alcoholics” and “drug addicts.” After hearing argument on the motion to suppress, during which counsel stated that the standard to apply was that of the preponderance of the evidence, the court announced:

“The Court has to. decide, whether or not the prima facie proof in this matter as to this time establishes that the confession was voluntarily, freely made, and in this instance, the issue is really was the defendant in this case so drunk at the time he made the confession that he did not know what he was doing, simply put.”

After reviewing the evidence, the court concluded that “the State has met its burden, prima facie and has prima facie shown that the statement given by this defendant was given freely, voluntarily and with a rational mind.” (Emphasis added.) The jury then returned to the courtroom and the trial resumed with Detective Wiseman’s testimony and the receipt in evidence of appellant’s statement.

The first “major point” made by appellant’s trial counsel in support of a motion for a new trial was that the court had applied an improper standard of proof — the prima facie test instead of the preponderance of the evidence test — in its determination of the admissibility of appellant’s inculpatory statement. Reliance was placed specifically on Lego v. Twomey, 404 U. S. 477 (1972). Denying the motion for a new trial, the court stated:

“The Court ruled at the trial that the test was whether the prima facie proof- was such as to establish that the confession was freely and voluntarily made. In light of counsel’s argument to me I still feel that is the test. I ruled at the time that there was prima facie proof that the statement was freely and voluntarily made.” (Emphasis added.)

And, the court immediately repeated:

“I reviewed the evidence at the time ... 1 see no reason to reiterate what I said then. I still believe the proper test was prima facie and it was met by the State, and the statement made by the defendant was admissible.” (Emphasis added.)

The court, in so holding, made no reference to Lego v. Twomey, supra, where the Supreme Court divided four to three against petitioner’s contention, upon the authority of In re Winship, 397 U. S. 358 (1970), that the trial judge should have found the confession voluntary beyond a reasonable doubt. (Emphasis added.) Mr. Justice White, who had authored the majority opinion in Jackson v. Denno, 378 U. S. 368 (1964), stated for the majority in Lego that in the resolution of the issues presented “we must return to Jackson v. Denno. ...” There the Court had held that:

(a) There is a denial of due process if a defendant’s conviction is based, in whole or in part, upon an involuntary confession; and
(b) That whether there is ample evidence aside from the confession to support the conviction is immaterial; and
(c) That there is a constitutional right to object to the use of a confession and to have a fair hearing and a “reliable determination” of voluntariness, a determination which must be uninfluenced by the truth or falsity of the confession.

That the trial judge at a coercion hearing was not constrained by the Court in Jackson v. Denno to determine voluntariness with reference to an “especially severe standard of proof” was noted by the majority in Lego. On the other hand, that the less stringent standard of prima facie proof may not be utilized was made abundantly clear (p. 489):

“Thus, the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary. Of course, the States are free, pursuant to their own law, to adopt a higher standard.” (Emphasis added.)

The trial in the instant case took place on May 8 through May 10, 1973. Lego was decided on January 12, 1972, and clearly represented the controlling law at the time of the decision below. This Court had occasion thereafter in Mulligan v. State, 18 Md. App. 588, 308 A. 2d 418, decided on August 10, 1973, to comment, in the light of Lego, upon the standard of proof required of the State at a suppression hearing as a condition of the admissibility of an incriminatory statement. Judge Gilbert, speaking for the Court, emphasized that: “Trial Judges should not only apply the preponderance of evidence test to confessions . . . but they should . . . shun the use of the words prima facie in connection with the degree of proof required ... to render a confession admissible.”

Here, the preliminary determination was unequivocally made by application of the standard of prima facie proof, rather than at least the test of preponderance of the evidence. Felde’s constitutional right to have the question of voluntariness preliminarily determined by the trial judge, Jackson v. Denno, supra, was violated. The judgment of conviction must be reversed.

In view of our holding, we do not consider other questions presented.

Judgments reversed; cause remanded for a new trial; costs to be paid by Prince George's County.

      . This is a belated appeal by order of Judge Samuel W. H. Meloy following appellant’s petition for relief under the Post Conviction Procedure Act.

      . Seven other detectives who had responded to the police call to appellant’s apartment preceded Detective Wiseman to the stand. Their testimony was in the jury’s presence. It appears from a colloquy at the bench requested by defense counsel, that an unreported motion was made to exclude the jury, for the purpose of appellant’s motion to suppress, when Detective Wiseman took the stand.

      . Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of the case. Mr. Justice Brennan filed a dissenting opinion in which Justices Douglas and Marshall joined, urging that the standard of proof beyond a reasonable doubt should be applied.

      . The preliminary decision by the court involves a mixed question of law and fact. The trier of facts has, of course, the final determination whether or not the statement was voluntary and whether or not it should be believed. This ultimate determination by the trier of facts is a question of fact and the confession must be found voluntary by the standard of proof beyond a reasonable doubt. Ralph v. State, 226 Md. 480, 174 A. 2d 163 (1961); Linkins v. State, 202 Md. 212, 96 A. 2d 246 (1953); Barnhart v. State, 5 Md. App. 222, 246 A. 2d 280 (1968); Dempsey v. State, 24 Md. App. 8, 330 A. 2d 204 (1974).