Warren v. Dixon and Christopher Company

114 S.E.2d 250 (1960)

252 N.C. 534

John Wesley WARREN v. DIXON AND CHRISTOPHER COMPANY, Inc., and Globe Indemnity Company.

No. 595.

Supreme Court of North Carolina.

May 18, 1960.

*252 Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendants, appellants.

Bryant, Lipton, Strayhorn & Bryant, by Ralph N. Strayhorn, F. Gordon Battle, Durham, for plaintiff, appellee.

HIGGINS, Justice.

The hearing commissioner, the full commission, and the superior court by findings of fact and conclusions of law established the following: (1) Dixon and Christopher, Inc., at all times pertinent to this inquiry was a North Carolina corporation with its principal office in Greensboro, N. C.; (2) The claimant, John Wesley Warren, was a resident of Durham, North Carolina; (3) The contract of employment was made in North Carolina through Local Union No. 585; and (4) The contract was not expressly for services outside North Carolina.

The evidence at the hearing supports the conclusion the contract was made in North Carolina. The contractor was obligated to employ union men from Local No. 585 in Durham. The foreman on the employer's job called Mr. Whitaker, manager of Local 585, and asked him to send a pipe fitter for work at Clarksville, Virginia. Mr. Whitaker selected the claimant and called him to the union office in Durham, told him of the job then open. Claimant obtained a referral slip, giving his name, etc., had it certified by Mr. Whitaker, and reported to the job in Clarksville. The employer had a right to reject him if work was not available, in which case the employer was required by his contract to pay claimant both travel and reporting time. At the time claimant reported, *253 the job was open. He delivered the referral slip to the foreman and went to work under the foreman's direction. The referral slip was sent to the employer's office in Greensboro where the pay checks were made out and returned to the foreman for delivery to the claimant. The selection of the worker, the details of having him report were already arranged by Mr. Whitaker in Durham at the request of the foreman at Clarksville.

The foregoing findings of fact justified the conclusion the contract was entered into at Durham, North Carolina. Accepting the worker on the job was merely the consummation of what had been previously arranged, that is, the employment. The offer of the job was made to Mr. Warren by Mr. Whitaker at the request of Mr. Burnette. Mr. Warren indicated his acceptance by obtaining the referral slip at Durham and implemented it by going to Clarksville, presenting himself to the foreman, and entering upon the work assigned to him. No part of the contract was arranged by the claimant and the foreman. The claimant's acceptance of the offer is as clearly shown by his conduct in reporting to Mr. Whitaker at the union office in Durham as if he had said, "I accept."

The following is from the case of Gomez v. Federal Stevedoring Co., decided by the Appellate Division of the Superior Court of New Jersey (5 N.J.Super. 100, 68 A.2d 482, 483): "While it is true that there was no proof of oral acceptance in this State (N.J.) by the petitioner of the offer of employment * * * the offer was accepted in this State (N.J.) by petitioner's acts. His tacit assent when the offer of employment was made, coupled with his compliance with the terms of the offer (a job in New York) * * * constituted an acceptance in this State (N.J.). Although assent must be manifested in order to be legally effective, it need not be expressed in words. Modern law rightly construes both acts and words as having the meaning which a reasonable person present would put upon them in view of the surrounding circumstances."

In Bowers v. American Bridge Co., 43 N.J.Super. 48, 127 A.2d 580, 584, the Court said: "Agency apart, the acceptance by petitioner in Trenton of the employment opportunity offered him so as to fix the situs of the contract in New Jersey is adequately established by his action in signifying his assent to the proposal at the union hall in Trenton and in proceeding at once to Morrisville (Pa.)." Daggett v. Kansas City Structural Steel Co., 334 Mo. 207, 65 S.W.2d 1036; Pearson v. Electric Service Co., 166 Kan. 300, 201 P.2d 643.

In discussing a case arising under the Florida Workmen's Compensation Act (similar to ours), the Florida Appellate Court said: "It was clearly known to the employer-offeror that in order to accept the offer the employee would have to leave his employment in Florida and travel to Atlanta. It was equally obvious to the offeror that embarking on that course of action would in itself constitute a substantial detriment to the offeree and, from the outset, that the trip from Miami to Atlanta was a substantial part of the exchange contemplated by the offer of employment." Peterson v. Ray-Hof Agencies, Fla.App., 117 So. 2d 497, 499.

Expressing a contrary view are three cases from Missouri and one from Louisianna: Deister v. Thompson, 352 Mo. 871, 180 S.W.2d 15; Hunt v. Jeffries, 236 Mo. App. 476, 156 S.W.2d 23; Carpenter v. Wm. S. Lozier, Inc., 353 Mo. 864, 184 S.W.2d 999; Rushing v. Travelers Ins. Co., La. App., 85 So. 2d 298.

Mallard v. F. M. Bohannon, 220 N.C. 536, 18 S.E.2d 189, on rehearing 221 N.C. 227, 19 S.E.2d 880, in nowise is in conflict with the views herein expressed. In the Mallard case the employment (sales agent in a designated territory in north Florida *254 and south Georgia) showed the services were to be rendered exclusively outside North Carolina.

In the case of Reaves v. Earle-Chesterfield Mill Co., 216 N.C. 462, 5 S.E.2d 305, the accident occurred in South Carolina. The claimant was a resident of South Carolina and, therefore, excluded by our statute G.S. § 97-36. In Hart v. Thomasville Motors, 244 N.C. 84, 92 S.E.2d 673, the claimant was found to be not an employee but an independent contractor and, therefore, not within our workmen's compensation act.

This proceeding was conducted throughout and argued here upon the issues herein discussed. However, it may well be that the stipulations entered at the hearing that the parties were subject to and bound by the provisions of the North Carolina Workmen's Compensation Act and the execution of the Commission's form No. 21 are conclusive of the questions principally in dispute.

Notwithstanding the stipulation, we have examined the evidence, findings of fact, conclusions of law, and award made in the case in the light of the appellants' assignments of error. The record contained no evidence the employer made payments to the Employment Security Commission of North Carolina on claimant's behalf as found by the hearing commissioner in finding of fact No. 7. There was evidence from which it may be inferred that such payments were made for another employee from the same union on the same job but there is no evidence to indicate payment was made on behalf of the claimant. However, this finding is without significance since the evidence otherwise is amply sufficient to sustain all the findings of fact material to decision in the case. The facts found sustain the conclusions of law, and the conclusions support the award.

The judgment of the superior court is

Affirmed.