Millard v. Hoffman, Butler & Associates

224 S.E.2d 237 (1976)

29 N.C. App. 327

David MILLARD, Employee, Plaintiff v. HOFFMAN, BUTLER & ASSOCIATES, Employer, Home Indemnity Co., Carrier, Defendants.

No. 7528IC909.

Court of Appeals of North Carolina.

May 5, 1976.

Certiorari Denied July 14, 1976.

*238 Richard B. Ford, Asheville, for plaintiff-appellant.

Hedrick, Parham, Helms, Kellam & Feerick, by Philip R. Hedrick and Edward L. Eatman, Jr., Charlotte, and J. A. Gardner, III, for defendant-appellees.

Certiorari Denied by Supreme Court July 14, 1976.

ARNOLD, Judge.

The Commissioner's conclusions of law were based upon findings of fact substantially as follows:

(1) Plaintiff and Bradburn had worked with Hoffman for about three weeks when the injury occurred. Plaintiff was an experienced surveyor, though not registered, and he and Bradburn worked as a team.

(2) Plaintiff and Bradburn had an oral contract with Hoffman. They were to stake out lots at a price of eleven cents per foot, which compensation was to be divided between plaintiff and Bradburn. The lots and streets to be staked were indicated by one of Hoffman's supervisors from a map, and the two men reported the amount of footage they ran. No social security or income tax was withheld, and no W-2 forms were issued to plaintiff and Bradburn.

(3) Hoffman's supervisor assigned work to eight different crews working on the project. Except for Millard and Bradburn all the crews worked on an hourly basis.

(4) Mr. Hoffman testified that he knew plaintiff and Bradburn, and that plaintiff approached him with regards to subcontracting work by the foot, and that "each of them wanted to be his own man," and that they worked for several weeks on the project.

(5) Plaintiff and his partner were engaged in an independent occupation. They used their own special skills, knowledge and training, and they did the work at a fixed price. They were not subject to discharge because of the method of work they selected, and they were free to choose their own time to do the work. They were not regularly employed by Hoffman.

(6) An employer-employee relationship did not exist. Plaintiff was an independent contractor and while so engaged he lost the eyesight in his right eye as a result of being struck in that eye by a stick.

Plaintiff-claimant concedes that the findings made by the Commissioner are "reasonably based on the evidence adduced at the hearings and the fundamental facts and circumstances of the case." He contends that the conclusions of law are not supported by the findings, and that is the only argument presented for consideration in this appeal.

*239 An independent contractor is defined as a person "who exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work. Perley v. Paving Co., 228 N.C. 479, 46 S.E.2d 298, supra. When one undertakes to do a specific job under contract and the manner of doing it, including employment, payment and control of persons working with or under him, is left entirely to him, he will be regarded as an independent contractor unless the person for whom the work is being done has retained the right to exercise control in respect to the manner in which the work is to be executed. Denny v. Burlington, 155 N.C. 33, 70 S.E. 1085. The test is whether the party for whom the work is being done has the right to control the worker with respect to the manner or method of doing the work, as distinguished from the right merely to require certain definite results conforming to the contract." McCraw v. Mills, Inc., 233 N.C. 524, 526-527, 64 S.E.2d 658, 660 (1951).

The Commissioner's findings of fact, adopted by the Full Commission, support the conclusion that claimant was an independent contractor. Hoffman, Butler and Associates had no right of control with respect to the manner or method claimant chose to do the work, and he contracted to be paid a fixed fee for a final work project. McCraw v. Mills, Inc., supra; Askew v. Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965); Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965); Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944).

The opinion and award of the Industrial Commission is

Affirmed.

MORRIS and MARTIN, JJ., concur.