Burnett v. Palmer-Lipe Paint Co.
| Decision Date | 27 September 1939 |
| Docket Number | 95. |
| Parties | BURNETT v. PALMER-LIPE PAINT CO. et al. |
| Court | North Carolina Supreme Court |
This was a proceeding under the Workmen's Compensation Act. From an award by the Industrial Commission in favor of plaintiff, defendant insurance carrier appealed to the Superior Court. In the Superior Court, the defendant employer moved to dismiss the appeal. Motion denied. Judgment was then entered affirming the award of the Industrial Commission, and defendant insurance carrier appealed to the Supreme Court. The employer did not appeal.
Smathers & Meekins, of Asheville, for appellant.
Carl W. Greene and Jordan & Horner, all of Asheville, for appellee.
The plaintiff Burnett was employed by Mrs. D. K. Lipe. She was engaged in business under the name and style of Palmer-Lipe Paint Company, of which she was, and is, sole owner. The business carried on was that of retail store at 82 Patton Avenue in the City of Asheville, together with painting decorating and shop operations in connection with the store. It was admitted that more than five persons were employed in the business at that location.
The plaintiff received an injury while engaged in mowing the lawn at the private residence of Mrs. Lipe located on Hendersonville Road, several miles from 82 Patton Avenue. He testified relative to his injury as follows:
Mrs Lipe testified as follows:
The North Carolina Industrial Commission found the facts as to the character of plaintiff's employment as follows: "That the plaintiff was employed by the PalmerLipe Paint Company, an unincorporated firm, to drive the delivery truck, do the janitorial work at the store, and do the general janitorial work at the home of the sole owner of the Palmer-Lipe Paint Company, Mrs. Lipe, such as mowing the lawn, firing the furnace, cleaning the floors, and so on."
The Industrial Commission considered that, as the contract of employment between Mrs. Lipe and the plaintiff provided for the performance of certain duties at the home of Mrs. Lipe, as well as at the store, for which he was paid through the store, and the injury occurred during regular work hours, the injury arose out of and in course of plaintiff's employment.
Mrs. Lipe obtained a policy of employer's liability insurance from the defendant American Mutual Liability Insurance Company which contained, among other things, the following provision:
The classification of operations is stated in the following words:
Some reference was made in the testimony and in the findings of the Industrial Commission as to a conversation between Mrs. Lipe and an auditor of the defendant Insurance Company, who was checking the employer's pay rolls, relative to coverage, but this may not be held to vary the terms of the policy of insurance executed by the defendant Insurance Company and delivered to and accepted by the employer.
The North Carolina Workmen's Compensation Act defines employment coming within the provisions of the Act as including "all private employments in which five or more employees are regularly employed in the same business or establishment, except agriculture and domestic service," and excludes from its provisions "persons whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer." Sec. 8081(i), (a) (b), Michie's Code. The act further provides that insurance policies issued thereunder shall contain clause that "jurisdiction of the insured for the purposes of this article shall be jurisdiction of the insurer, that the insurer shall in all things be bound by and subject to the awards, judgments, or decrees rendered against insured employer." Section 8081 (zzz). The Act also specifically excepts from its provisions casual employees, farm laborers and domestic servants. Sec. 8081(u), (b), Michie's Code. In Johnson v. Hosiery Co., 199 N.C. 38, 153 S.E. 591, this court interpreted the meaning of these phrases as used in the statute.
There was reference in the testimony of the employer in the hearing before the Industrial Commission to the effect that she had also a contracting or construction business, separate and apart from the paint store, for which she did not carry insurance.
The record presents these material facts upon which appellant's liability depends: The plaintiff was employed by the operator of a paint store doing business at a definite location in Asheville, where more than five persons were there employed. The employer owned a private residence in another part of the city which had no connection with the business carried on at the store, except that both were owned by her. The plaintiff, in addition to the services rendered at the store, was also, for the same wage, required by his employer, from time to time, to perform certain other services at her home, such as firing the furnace, washing the floors, working the garden and mowing the lawn. No other person was employed in that work. It was while engaged in mowing the lawn that the injury complained of was received. Upon the record presented we are of opinion, and so hold, that the injury does not come within the provisions of the Act, that the Industrial Commission was without power to make the award against appellant, the insurance carrier, and that the Superior Court was in error in affirming the award. It is clear, we think, if the employer had been a corporation or partnership, of which Mrs. Lipe was an executive, an injury to an employee of the company while engaged in private and personal work for her, having no relation in character or location to the business of the company, would not have been compensable by the company or its insurance carrier under the Act. And we think the same reasoning would apply when the same person operates a business or industry, and also has personal service rendered in and around a private residence at another location.
The terms of the insurance policy definitely exclude liability for injury received at the location and in the manner in which plaintiff was injured; hence the employer had no insurance for an injury to an employee engaged in mowing the lawn at her residence on Hendersonville Road, notwithstanding she paid him indiscriminately for all services through her office at the store.
"One of the fundamental tests of the right to compensation is not the title of the injured person, but the nature and quality of the act he is performing at the time of the injury." Hodges v. Mortgage Co., 201 N.C. 701, 161 S.E. 220, 223; Nissen
v. Winston-Salem, 206 N.C. 888, 175 S.E. 310.
The precise question here presented has not heretofore arisen in the state. However, the principle involved has been considered by courts in other states in numerous cases. The results obtained in the different cases are not always in harmony, but we think the weight of authority supports the conclusion we have reached.
A case in many respects similar to ours was decided by the Supreme Court of Maine in Paradis' Case, 127 Me. 252, 142 A. 863 864. There the employer's specified business was that of general hardware, tinsmithing and plumbing, in a store. The claimant was employed to operate trucks, haul freight, unpack and deliver goods. His duties varied, however, and were divided between the store and the house of his employer. At the employer's house (during work hours) he made kindling, prepared fuel, tended fires, worked about the grounds. The employee was paid at the store. The wage included work done by the employee at the home as well as at the store. In mid-afternoon, at the home, while breaking up a box for kindling, he was injured when a nail flew from the box into his eye. Holding the claimant not entitled under the Act, the court said: ...
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