and Hycon is not one of contract, but of identity or joint venture.
In Saf-T-Cab Service, Inc. v. Terry, 167 Md. 46, 172 Atl. 608 (1934), it was held that it was a question of fact for the jury whether a taxi fleet owning corporation was so involved with the taxi operating company by whom plaintiff was employed, but which was bankrupt, that the owning corporation could be considered the plaintiff's employer for the purposes of workmen's compensation liability. If such a finding is made in the instant case, plaintiff's action must be foreclosed, because anyone subject to workmen's compensation liability is exempted from tort liability.
A careful comparison of the facts in Saf-T-Cab with those in the instant case does not indicate the same relationship here as that from which identity was there allowed to be inferred. In Saf-T-Cab, the enterprise was so integrated that both corporations used only one account. In the instant case, the businesses were distinct, one being in manufacturing, the other in distribution. Stocks were sold in the yard, with a complete transfer of title from Edmonds to Hycon, and separate accounts were maintained for all purposes. Such sales, with their consequent transfer of title, negate any idea of joint venture. There is no evidence of a sharing of profits and losses, or joint proprietary interest or right of mutual control over the subject matter of the enterprise which might indicate a joint venture.
Saf-T-Cab was essentially a case in which the non-employing corporation was set up with no purpose or function other than the holding of title to the business assets. Cf. Williams v. Consumers Ice Co., 68 So.2d 246 (La.App.1953). In such a case, identity may be readily inferred. This is not such a case; Hycon has real, organic business functions and interests different from Edmonds. This court holds, therefore, that Hycon and Edmonds were not a single employer for the purposes of the Act. See Foley v. New York City Omnibus Corp., 112 N.Y.S.2d 217 (Sup.Ct.1952); cf. Brown v. Moorehead Oil Co., 239 S.C. 604, 124 S.E.2d 47 (1962).
Defendant contends that, if Hycon and Edmonds are not identical, they are "joint employers", both liable for workmen's compensation, and therefore immune from tort liability. The rules for determining the existence of the relationship of employer and employee under the Workmen's Compensation Act are the same as the rules at common law for determining the relation of master and servant. Sun Cab Co. v. Powell, 196 Md. 572, 577, 77 A.2d 783, 785 (1951). The Maryland Court of Appeals has enumerated the following criteria: (1) the selection and hiring of the servant, (2) the payment of wages, (3) the power of dismissal, (4) the right to control the servant's conduct, and (5) whether the work being done is essentially that of the special employer. L & S Constr. Co., Inc. v. State Acc. Fund, 221 Md. 51, 155 A.2d 653 (1959). Compare 1 Larson, Workmen's Compensation § 48 (1964). That Court has also held, however, that none of these factors is decisive, except "the right to control and direct the servant in the performance of his work and in the manner in which the work is to be done. It * * * is not the manner in which the alleged master actually exercised his authority to control and direct the action of the servant which controls, but it is his right to do so that is important." Keitz v. National Paving & Contracting Co., 214 Md. 479, 491, 134 A.2d 296, 301 (1957).
In the instant case, it cannot be said that Hycon had the right to control plaintiff's conduct. The plant foreman of Edmonds Art Stone Company assigned plaintiff to the delivery run on this as on previous occasions; there is no evidence that anyone other than the foreman controlled the plaintiff, or had the right to control him, in the details of his run, its destination, and manner of performance.
Moreover, the right to control a servant's conduct cannot be inferred from facts which do not indicate the employee's consent. Before a person can be held as a joint, or special, employer there must be a contract of hire, express or implied, between the employee and such dual or borrowing employer. In re Brooks' Case, 338 Mass. 692, 157 N.E.2d 231 (1959); Gipson v. Skelly Oil Co., 152 F.2d 588 (5th Cir. 1946); cf. Bently, Shriver & Co. v. Edwards, 100 Md. 652, 60 Atl. 283 (1905). The relationship must exist between the employee and the special employer, irrespective of any arrangements between the two employers. In vicarious liability cases, the focus is on the relationship between the two employers - their agreement, how they divided control, how payment was effected, and whose work, as between themselves, was being done - and the consent of the employee being transferred or shared may not be relevant in determining which of two employers should be held liable for the employee's negligence. But in compensation law, since the employee, although gaining certain rights, loses others, including the right to sue the special employer in common law negligence, the creation of a new employment relationship cannot be inferred without his consent. Fisher v. City of Seattle, 62 Wash.2d 800, 384 P.2d 852 (1963); 1 Larson, Workmen's Compensation § 48.10 (1964).
This consent may be implied. Acceptance of the control and authority of a special or dual employer may indicate consent. Bright v. Bragg, 175 Kan. 404, 264 P.2d 494 (1953); cf. Naranja Rock Co., Inc. v. Dawal Farms, Inc., 74 So.2d 282 (Fla.1954). Acceptance of payment from the special employer may also be relevant. See Charles v. Lincoln Constr. Co., 235 Ark. 470, 361 S.W.2d 1 (1962). But there is no indication in the stipulated facts of this case that plaintiff in any way consented to an employee relationship with Hycon, Inc. Plaintiff's operation of the defendant's truck was entirely in obedience to employer Edmonds' instructions.
This court finds, therefore, that defendant Hycon, Inc., is a third party within the meaning of the Maryland Workmen's Compensation Act, and may be liable in damages for any injuries sustained by employees of Edmonds Art Stone Company as a result of Hycon's negligence. Counsel will present promptly an appropriate order.
This is an important question, and one which was resolved in favor of plaintiff after much thought. The contention and argument of defense counsel have real merit. Both counsel have heretofore indicated that the question should be resolved with finality prior to actual trial. Therefore, this court will, upon motion of counsel, certify this question for immediate appeal as contemplated by Title 28, § 1292(b), United States Code.
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