De Berry v. Coker Freight Lines

• Decision Date: 13 April 1959
• Docket Number: No. 17523,17523
• Citation: 234 S.C. 304,108 S.E.2d 114
• Parties: Ben J. DE BERRY, Respondent, v. COKER FREIGHT LINES, and United States Fidelity and Guaranty Company, Appellants.
• Court: South Carolina Supreme Court

Page 114

108 S.E.2d 114

234 S.C. 304

Ben J. DE BERRY, Respondent, v. COKER FREIGHT LINES, and United States Fidelity and Guaranty

Company, Appellants.

No. 17523.

Supreme Court of South Carolina.

April 13, 1959.

C. M. Edmunds, G. Werber Bryan, Sumter, for appellants.

Weinberg & Weinberg, Sumter, for respondent.

MOSS, Justice.

This is a proceeding for compensation under the Workmen's Compensation Act, Section 72-1 et seq., Code of 1952, instituted by Ben J. DeBerry, respondent, against Coker Freight Lines, and its insurance carrier, United States Fidelity & Guaranty Company, the appellants herein. The respondent asserts that he was an employee of Coker Freight Lines and that he received an injury by accident arising out of and in the course of his employment. The appellants assert that the respondent was not an employee of Coker Freight Lines within the meaning of the Compensation Act.

The question of whether or not the respondent was an employee of Coker Freight Lines at the time of his injury has been resolved in favor of the said respondent by the Single Commissioner and the Full Commission. From the findings and award of the Full Commission an appeal was made to the Court of Common Pleas for Sumter County upon three exceptions, which were heard by the Honorable J. Woodrow Lewis, Presiding Judge, who overruled all of the exceptions and affirmed the award made by the Industrial Commission. Timely appeal to this Court followed.

The exceptions of the appellants pose three questions. (1) Was the respondent an independent contractor? (2) Was the respondent a casual employee of Coker Freight Lines? (3) Was the respondent an employee of Coker Freight Lines within the meaning of the South Carolina Workmen's Compensation Act?

It appears from the testimony that Coker Freight Lines is a common carrier of freight, operating in interstate commerce, and was under contract to deliver a shipment of plywood to three consignees, one being in Lodi, New Jersey, and the other two in the State of New York. It appears that while the respondent was unloading the plywood in Lodi, New Jersey, that some of the plywood fell on him and broke his leg. This is the injury for which he seeks compensation.

The truck which the respondent had driven to New Jersey was owned either by Frances J. Jordan or Jordan Motor Lines, Inc., and the respondent was employed by the owner of the truck. The truck and the respondent were leased by the owner thereof to the Coker Freight Lines for the purpose of transporting the plywood in question to the consignees in the State of New Jersey and New York. The owner of the truck was to receive a portion of the freight charge as compensation, and the respondent a percentage of the owner's share as his wages for operating the truck. It further appears that the owner of the truck was not a licensed common carrier in interstate commerce. The truck, therefore, at the time of the injury to the respondent, was being operated solely under the authority granted to Coker Freight Lines as a common carrier in interstate commerce, and in fulfillment of the contract of Coker Freight Lines to transport the plywood from Sumter, South Carolina and deliver it in Lodi, New Jersey, and other points.

What constitutes one an independent contractor is fully set out in the cases of Carter's Dependents v. Palmetto State Life Ins. Co., 209 S.C. 67, 38 S.E.2d 905; Gomillion v. Forsythe, 218 S.C. 211, 62 S.E.2d 297, 53 A.L.R.2d 169 and Cooper v. Graham, 231 S.C. 404, 98 S.E.2d 843. The right or power of control retained by the person for whom the work is being done is uniformly regarded as the essential criterion for determining whether the workman is an employee or an independent contractor.

In the case of Brownlee v. Charleston Motor Express Co., Inc., 189 S.C. 204, 200 S.E. 819, 824, it appears that the plaintiff had been injured by a truck operated by the defendant corporation under its license, which said truck and the driver had been leased from one Cordray. While hauling the defendant's freight, the truck became involved in an accident in which the plaintiff was injured. The question of the truck driver's relationship to the defendant corporation was raised and submitted to the jury. The jury, by its verdict, found that the driver was an employee of the defendant. Upon appeal, this Court said:

"It is well settled that one who is the general servant of another may be loaned or hired by his master to another for some special service so as to become, as to that service, the servant of such third person, the test being whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the person to whom he is loaned or hired. * * *' 18 R.C.L. 493, Section 3.

"* * * In the case of an oral contract, if there is no material dispute in the testimony, whether the employee is an independent contractor may present a question for the Court; but, where the evidence is conflicting, or where different inferences may be drawn from the testimony concerning the oral contract, the matter is one for the jury to determine.' 14 R.C.L. 79, Section 16.'

The case of Brabham v. Southern Asphalt Haulers, Inc., 223 S.C. 421, 76 S.E.2d 301, 305, was an action for injuries to the plaintiff when a panel truck in which she was riding was forced from the highway into a concrete bridge by a tractor and trailer owned by Southern Asphalt Haulers, Inc., and leased along with its driver to Infinger Transportation Co., Inc., which had an interstate commerce certificate, the lessor not having such a certificate. A verdict for damages for the injuries sustained by the plaintiff was entered against the Infinger Transportation Co., Inc. It appeared from the evidence that Infinger had been awarded a contract to transport asphalt from Charleston, S. C., to Durham, North Carolina, and did not have sufficient equipment to transport such asphalt products, and entered into a lease agreement with Southern Asphalt Haulers, Inc., whereby equipment of the latter was to be used in the transportation of the asphalt products under interstate commerce rights held by Infinger Transportation Co., Inc. It was testified that the leased equipment was under the control and supervision of Infinger. In disposing of the appeal by Infinger, this Court said:

'When the foregoing is considered in the light of the principle set forth in the Brownlee case, supra, it is clear that there was sufficient evidence from which the jury could conclude that the appellant as lessee of the tractor and trailer assumed direction and control of such vehicle in its operation and in doing so assumed responsibility for the proper operation thereof. It is true that the drivers thereof would be kept upon the payroll of the Southern Asphalt Haulers, Inc., but provision was made for the deduction of wages, social security taxes, etc., without such drivers actually appearing on the payroll of the appellant; but this in nowise renders a nullity the fact that the appellant assumed complete control and direction of the operation of such equipment and its operators while operating in interstate commerce under its I.C.C. rights and it will not be permitted to escape liability to the public for the negligent operation of such equipment. Shapiro v. City of Winston-Salem, 212 N.C. 751, 194 S.E. 479; Jocie Motor Lines, Inc., v. Johnson, 231 N.C. 367, 57 S.E.2d 388; Brown v. L. H. Bottoms Truck Lines, Inc., 227 N.C. 299, 42 S.E.2d 71; Wood v. Miller, 226 N.C. 567, 39 S.E.2d 608; Hodges v. Johnson, D.C., 52 F.Supp. 488; Steffens v. Continental Freight Forwarders Co., 66 Ohio App. 534, 35 N.E.2d 734; Kimble v. Wilson, 352 Pa. 275, 42 A.2d 526, Restatement of the Law of Torts, Section 428.'

The record shows that Coker Freight Lines was a motor carrier of goods in interstate commerce, operating under authority of a certificate or license issued by the Interstate Commerce Commission. The transportation of goods in interstate commerce by a motor carrier is subject to the applicable provisions of the Federal Statutes governing such carriage, and the rules regulations and requirements of such commission. 49 U.S.C.A. § 301 et seq. Coker Freight Lines, in order to augment its equipment for the transportation of the plywood in question, obtained by contract the truck of the owner and the driver employed by such owner. This carrier issued a manifest showing the origin and destination of this shipment, and that the driver of the truck was the respondent. The testimony reveals that when the lease of the equipment and the driver was made with Coker Freight Lines, Inc., the owner did not know to what destination the truck and the driver would be dispatched. The manifest and the bills of lading were the directions to the driver of the truck as to the destination of the shipment. The respondent testified that he would have driven the truck and made a delivery at any place the manifest and bills of lading directed him to go. The testimony further shows that the manager of Coker Freight Lines, Inc., delivered the manifest and bills of lading to the respondent, and in addition thereto orally stated that the plywood was due to be unloaded at its destination on the Monday following the shipment. The respondent also testified that under the rules of the Interstate Commerce Commission, if he had done anything contrary to the instructions given by the shipper, he could have been discharged insofar as the particular load was concerned. It is in testimony that Coker told the respondent where to go and what to do, and that the owner of the truck had nothing to do with when or where Coker sent the respondent. It is also in testimony that after the respondent was injured that Coker made the arrangements to have the cargo taken on for delivery in Brooklyn, New York. The log book of Coker was in the possession of the respondent and upon the...