Scott v. Waccamaw Lumber Co.

59 S.E.2d 425 (1950)

232 N.C. 162

SCOTT et al. v. WACCAMAW LUMBER CO. et al.

No. 676.

Supreme Court of North Carolina.

May 24, 1950.

*426 L. J. Britt and McLean & Stacy, Lumberton, for plaintiffs, appellees.

David M. Britt, Fairmont, for defendants, Waccamaw Lumber Co. and Employers Mutual Liability Ins. Co. of Wisconsin, appellants.

ERVIN, Justice.

An injured person, or his dependent or next of kin, is entitled to compensation under the North Carolina Workmen's Compensation Act only if he is an employee of the party from whom compensation is claimed at the time of his injury or death. G.S. § 97-2. For this reason, the injured employee of an independent contractor, or his dependent or next of kin, can not recover compensation from the employer of the independent contractor. Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515.

The deceased was working under the direction of Milligan at the time of his fatal injury. This being true, this proceeding turns on whether Milligan was then acting as an independent contractor or as a mere supervisory employee of the Waccamaw Lumber Company. The Industrial Commission resolved this crucial question of fact in favor of the plaintiffs, and the appellants challenge the validity of the ensuing award by assignments of error asserting that there was no competent evidence before the Industrial Commission to support its essential findings that Milligan operated the sawmill as a supervisory employee of the Waccamaw Lumber Company rather than as an independent contractor, and that the deceased was an employee of the Waccamaw Lumber Company rather than an employee of Milligan at the time of his injury and death.

The question whether one employed to perform specified work for another is to be regarded as an independent contractor, or as an employee within the operation of the Workmen's Compensation Act is determined by the application of the ordinary common-law tests. 58 Am.Jur., Workmen's Compensation, section 138.

An independent contractor is one who exercises an independent employment, and contracts to do specified work for another by his own methods without subjection to the control of his employer, except as to the result of his work. His one indispensable characteristic is that he contracts to do certain work, and has the right to control the manner or method of doing it. The test to be applied in determining whether the relationship of the parties under a contract for the performance of work is that of employer and employee, or that of employer and independent contractor 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 *427 results conforming to the contract. If the employer has the right of control, it is immaterial whether he actually exercises it. Brown v. Bottoms Truck Lines, 227 N.C. 299, 42 S.E.2d 71; Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137; Lassiter v. Cline, 222 N.C. 271, 22 S.E.2d 558; Graham v. Wall, 220 N.C. 84, 16 S.E.2d 691; Beach v. McLean, supra; Kesler Construction Co. v. Dixson Holding Corporation, 207 N.C. 1, 175 S.E. 843; Bryson v. Gloucester Lumber Co., 204 N.C. 664, 169 S.E. 276; Inman v. Gulf Refining Co., 194 N.C. 566, 140 S.E. 289; Aderholt v. Condon, 189 N.C. 748, 128 S.E. 337; Cole v. City of Durham, 176 N.C. 289, 97 S.E. 33, 11 A.L.R. 560; Gadsden v. Craft & Co., 173 N.C. 418, 92 S.E. 174, 20 A.L.R. 662; Patrick v. Giant Lumber Co., 164 N.C. 208, 80 S.E. 153; Johnson v. Carolina C. & O. R. Co., 157 N.C. 382, 72 S.E. 1057; Beal v. Champion Fiber Co., 154 N.C. 147, 69 S.E. 834.

There was no evidence of any express agreement giving the Waccamaw Lumber Company the right to control the manner or method of performing the work at the sawmill.

But the testimony of all the parties disclosed these facts indicative of an employer-employee relationship between the Waccamaw Lumber Company and Milligan: That the work in question was not an independent undertaking, but constituted a part of the general business of the Waccamaw Lumber Company; that the Waccamaw Lumber Company owned and furnished the sawmill used in the work; that the Waccamaw Lumber Company controlled the premises where the work was performed; that the Waccamaw Lumber Company determined the amount of work to be done at the sawmill by the quantity of logs it delivered; that Milligan devoted all his energy and time to the service of the Waccamaw Lumber Company; that the Waccamaw Lumber Company gave Milligan specific directions at its pleasure as to the dimensions of the lumber to be sawed; that the Waccamaw Lumber Company had the right to discharge Milligan with or without cause at any time; that Milligan made no effort to procure compensation insurance covering the sawmill hands or to satisfy the Industrial Commission of his financial responsibility as a self-insurer; and that the Waccamaw Lumber Company extended credit to the sawmill hands at the commissary which it operated for the benefit of its employees.

The plaintiffs introduced additional testimony, which was in sharp conflict with evidence presented by the appellants, tending to show that the Waccamaw Lumber Company did these things through the agency of its yard superintendent, Gordon Fowler: That it hired the deceased to work for it; that it caused the deceased to labor at times in its lumber yard under the supervision of Fowler, and to work at other times at its sawmill under the direction of Milligan; and that it paid the wages of the deceased and his fellow workmen for the labor which they performed at the sawmill. Moreover, Milligan, who was a witness in the proceeding, conceded on his crossexamination by counsel for the plaintiffs that he "worked for the Waccamaw Lumber Company, the Company that was running the sawmill."

These things being true, there was sufficient competent evidence before the Industrial Commission to warrant the inference that the Waccamaw Lumber Company had the right to control Milligan and his subordinates in respect to the manner or method of doing their work, and to support the findings challenged by the assignments of error of the appellants. This necessitates an affirmance. Henry v. A. C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760.

Affirmed.