Appeal from the Baltimore City Court; Byrnes, J.
Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Henderson, J., delivered the opinion of the Court.
This appeal is from a judgment N.O.V. entered by the trial court in favor of the defendants, employer and insurer, in a workmen's compensation claim. Two issues were submitted to the jury: whether the claimant was an employee of Gaultney at the time of his injury, and whether he sustained an accidental injury in the course of his employment. The jury answered "Yes" on both issues. The trial court granted the motion for judgment N.O.V. on the ground that under the evidence the claimant was an independent contractor as a matter of law. No question is raised on this appeal as to the second issue. The appellant contends that there was legally sufficient evidence to support the jury's finding on the first issue.
The appellee, Gaultney, had been engaged in the contracting business for a number of years. The particular work in which he specialized was that of a "dry-wall applicator", described as the applying or nailing of sheet-rock to the interior of houses under construction, and "taping and finishing it, ready for painting and papering." He contracted to perform this work with various developers and builders and had seven regular employees operating in two crews, one to apply the sheet-rock and one to tape and finish it. These regular employees were carried on his payroll and paid an hourly wage, from which was deducted workmen's compensation insurance, and social security and income taxes withheld. From time to
time as the volume of work required, he would also engage the services of other workmen to apply the sheet-rock at a fixed price per sheet. These additional workmen were not carried on his payroll, and there were no deductions similar to those made in the case of his regular employees.
The claimant, sixty-two years of age, had worked for Gaultney on a number of previous occasions over a period of years. He had come to this area from West Virginia about six years before, and solicited work as a sheet-rock fastener. He was always accompanied by his sons or other young men, and they worked as members of a "team". They furnished their own tools, such as hammers, nail aprons, knives and T-squares. Gaultney furnished the nails, and either he or the builder would furnish the sheet-rock. Each sheet was about 12 feet long and 4 feet wide, and weighed about 75 pounds. It was necessary to have a helper or helpers to hold each sheet in position while it was being nailed to the walls and ceilings. It appears that Gaultney also furnished trestles and rough lumber for scaffolds which the team erected where necessary to reach the ceilings. ...