Hayes v. Board of Trustees of Elon College

DeviN, J.,

dissenting: It is a cardinal principle in the law by which compensation is allowed to the dependents of workmen who fall victims to the hazards of industry, that the findings of fact made by the Industrial Commission are conclusive on appeal, if supported by any competent evidence. The Commission is constituted the sole judge of the facts.

In this case the Industrial Commission found, and the Superior Court affirmed, that the relationship of the deceased to the defendant was that of employee, rather than that of independent contractor. In the opinion of the majority there was no evidence to support this finding. With this I do not agree.

The general principles of law so well stated in the majority opinion, deduced from the many decided cases on the subject, in which the distinction between an employee and an independent contractor is drawn, together with the ordinary indicia of each, are not controverted. It is only in the application of these principles to the facts of the individual case that differences arise.

The Workmen’s Compensation Act, under which this claim was instituted, defines the word employee, when used in the Act, as meaning “every person engaged in an employment under any appointment or contract of hire. . . .” The generally accepted definition of independent contractor is that he is one who exercises an independent employment, and contracts to do a piece of work according to his own judgment and methods, without being subject to his employer except as to the results of the work. The usual test is whether control over the work is reserved by the employer. “The circumstance that an employer has actually exercised certain control over the performance of the work may not only render him responsible for the acts done under his direction but may be considered as a factor tending to show the subserviency of the contractor. In other words, the fact that the employer has actually exercised control *21 is properly considered as tending to show he has a right to control.”' • Aderholi v. Condon, 189 N. C., 748 , 128 S. E., 337 . I think the evidence discloses that control over the details of the work in this case was exercised by the defendant.

The Industrial Commission carefully analyzed all the testimony bearing on this point and found, both as a fact and as a conclusion on the facts found from the evidence, that at the time and with respect to the injury complained of the deceased was an employee of the defendant within the meaning of the Compensation Act. Was there any evidence to support this view?

Taking the facts in evidence, together with the inferences properly to be drawn therefrom, and considering them in the light most favorable for the claimants, I think this picture is fairly presented. The defendant College wished to have some work done on an electric transmission line on its grounds. The Business Manager, Mr. Lovett, spoke to the Superintendent of Duke Power Company about obtaining some of his linemen, stating he wished six new poles set and wires moved from old to new poles; that he had the poles, and would pay $30 for the labor of setting them. He was told the men were at liberty to do this work when they were off duty, if they so desired. In consequence, on Saturday, 23 January, 1943, three linemen, Moore, Dixon, and Hayes, presented themselves at the college grounds and waited for Mr. Lovett to come out. When he' arrived, he showed them what he wanted done, six new poles to be set to replace old ones. The holes had already been dug by the defendant. The three men said they would do the work, if the College would furnish a truck, certain tools and implements, and the assistance of two other laborers. This was agreed to. Moore testified at the hearing that Hayes asked Mr. Lovett if it would be all right to cut some limbs off the trees in putting the poles up, and that Mr. Lovett said he would rather not have the trees cut, that he would rather take some off the poles. “He told us to cut some off of them. I think it was ten feet off each pole.” That was done. Hayes and one of the colored laborers cut off the ends of the poles with a saw furnished by defendant. Mr. Lovett also told the men he would have the electric current cut off the line on- the old poles when necessary, and directed a College employee to cut it when requested, but said as the current heated the building he would rather they would not have it off longer than necessary. The work was begun and Mr. Lovett remained about ten minutes, and then left, saying he didn’t know much about the work and expected a good job. He was there when the first pole was being sawed. With the aid of the truck, tools and college laborers four poles were set. When the fifth pole was set one of the wires on the near-by old pole fell and Hayes was electrocuted.

*22 Here tbe employment of the deceased to do the work desired was personal and direct. He was not working for someone else who had a con-, tract with defendant, but he was doing work the defendant had employed him individually to do. Before beginning he waited for instructions from defendant’s Business Manager as to what work was to be done, the means available therefor, and the method of handling certain details. Control was exercised by the employer as to shortening poles, cutting off the current, and as to where the poles should be set. While the bargain of hiring was in parol and its terms not very clearly defined, I think the reasonable implication is that the entire plan for rebuilding the transmission lines was under the supervision of the defendant and subject to its right of control. All the materials, tools, implements and additional labor were furnished by the College. Hayes was told when to work and where, and it is reasonable to infer that defendant could have discharged him subject only to its liability in that case for breach of contract of employment.

Consideration of the full implication of this testimony leads me to the conclusion, as it did the court below, that there was evidence to support the findings of the Industrial Commission.

The case at bar is in material respects similar to Johnson v. Hosiery •Go., 199 N. C., 38 , 153 S. E., 591 . There the defendant employed plaintiff Johnson, an experienced painter, to paint the ceiling of its hosiery mill. While plaintiff was so engaged he fell from'the scaffold and was injured. It was held, in an opinion written with his usual clearness by Brogden, J., that the facts excluded the theoi’y of independent contractor, and award of compensation was upheld.

In Beach v. McLean, 219 N. C., 521 , relied on by defendants, the claimant was employed by McLean, who in turn had a contract with a cotton mill to remove some machinery. As McLean was an independent contractor, it was held the claimant was not an employee of the mill. And in Bryson v. Lumber Go., 204 N. 0., 664, 169 S. E., 276 , where claimant was debarred from compensation on the ground that he was an independent contractor the facts were stated as follows: “He (plaintiff) was paid $7.00 per thousand feet to haul logs. He employed his own assistants and was at liberty to haul the logs in his own way, without direction from any of the officials of the Lumber Company.”

It has been repeatedly declared by this Court that the Workmen’s Compensation Act should be liberally construed and applied in order that its predominant purposes may be effectuated, that is, to provide some certain compensation for the losses resulting from those industrial accidents which come within its provisions; or, as expressed by Justice Brogden, “to the end that the benefits thereof should not be denied upon technical, narrow and strict interpretation.”

*23 In this case a workman dependent on his labor for his own support and that of his family has lost his life while in the service of the defendant. The majority opinion holds that the facts in evidence are susceptible of no other reasonable construction but that he was at the time and in respect to his service an independent contractor, and not an employee within the meaning of the Act. In dissenting from the result reached, I venture respectfully to express the opinion that the record discloses some evidence upon which to sustain the judgment below that deceased was an employee, and that his dependents are entitled to the compensation fixed by law.

ScheNOK and Sea well, JJ., concur in dissenting opinion.