Carter v. Boyd Const. Co.
| Decision Date | 04 January 1971 |
| Docket Number | No. 19144,19144 |
| Citation | 255 S.C. 274,178 S.E.2d 536 |
| Court | South Carolina Supreme Court |
| Parties | James E. CARTER, Respondent, v. BOYD CONSTRUCTION COMPANY and St. Paul Fire and Marine Insurance Company, ofwhom St. Paul Fire and Marine Insurance Company is Appellant. |
J. Means McFadden, of Robinson, McFadden & Moore, Columbia, for appellant.
Lee & Ball, Columbia, for respondent.
In this action for fraud and deceit the plaintiff Carter sought to recover both actual and punitive damages from Boyd Construction Company and St. Paul Fire and Marine Insurance Company. Such parties, for simplicity, will be referred to as Carter, Boyd and St. Paul. In the course of the trial the court granted a nonsuit as to Boyd, but refused motions by St. Paul for nonsuit and directed verdict. The jury returned a verdict in favor of Carter for $3,000.00 actual damages and the appeal is from the court's denial of St. Paul's motion for judgment non obstante veredicto or, in the alternative, for a new trial.
St. Paul first contends that there was a total lack of evidence that it made any statement or did any acts upon which plaintiff relied to his detriment and that, accordingly, it was entitled to a directed verdict. In considering this contention it is elementary that the evidence and all of the inferences reasonably deducible therefrom have to be viewed in the light most favorable to the plaintiff. We, accordingly, state the facts and reasonable inferences from the evidence in the light of the foregoing principle.
Since, for the reasons hereinafter set forth, the case will have to be remanded for a new trial, we limit our review of the evidence to only the highlights which are essential to a disposition of the appeal. Boyd has been engaged in the construction of residences since 1952. Carter was a carpenter with a sixth grade education who, in one capacity or another, worked for Boyd from 1952 until after November 24, 1964, on which date Carter sustained an injury to one of his fingers while on the job. St. Paul was the compensation carrier for Boyd from 1961 to 1965. As a result of his injury, Carter filed a claim for Workmen's Compensation benefits, but St. Paul denied liability contending that Carter was a subcontractor and not an employee, and, hence, entitled to no benefits. While an informal conference was had with a single Industrial Commissioner, there has been no adjudication of his compensation claim or determination of whether, in fact, he was an employee or a subcontractor at the time of his injury. For the purpose of this litigation, however, we must assume that he was a subcontractor and entitled to no Workmen's Compensation benefits. St. Paul so contended before the Industrial Commission and would be estopped to now contend otherwise.
Prior to January 1956, Carter was an hourly wage employee of Boyd but at that time Boyd changed the status of Carter, insofar as Boyd's records were concerned, from that of employee to that of subcontractor. Accompanying the change Boyd required Carter to report and pay his own Social Security tax, and thereafter also deducted from Carter's pay sufficient money to pay the proportion of Boyd's premium on Workmen's Compensation insurance attributable to and calculated on the amount of money paid Carter for his services. While designated a subcontractor, Carter had no employees and while he did other carpentry work, he was principally a cabinet maker. At the time of his injury and for a year or more prior thereto, he was being paid for his cabinet work on a 'per running foot' basis, rather than an hourly or job basis. He was also doing other carpenter work for Boyd, being paid therefor on an hourly basis.
Premiums paid to St. Paul by Boyd included the premiums deducted from Carter's pay by Boyd. St. Paul made periodic audits of Boyd's payroll and it is reasonably inferable that it knew, or at least should have known, that it was receiving a premium based on Carter's earnings, whatever his capacity, and that Carter was designated on Boyd's records as a subcontractor.
It appears that Carter questioned whether or not he was fully protected for Workmen's Compensation benefits in case of injury but was assured by Mr. Darnell Boyd, proprietor of the construction company, that he was fully protected. On October 25, 1963, Mr. Boyd contacted Mr. E. B. Sample, State Agent for St. Paul, at its Columbia office, by telephone, and told Mr. Sample about Carter's situation and Carter's concern as to whether he was protected. In response to the telephone call, Sample wrote Boyd the following letter,
'This will confirm our conversation of this afternoon with reference to the question of 'would an individual employed as a cabinet maker at a payment of so much money per foot be considered a sub-contractor or an employee within the terms of the Workmen's Compensation Act?'
St. Paul's contention that it did not do or say anything upon which Carter relied to his detriment is predicated on the fact that Carter apparently had no recollection of having seen the foregoing letter prior to his injury, and further testified that he did not recall having had any direct contact with St. Paul prior to his injury. It is clearly inferable, however, we think from all of the evidence that Mr. Boyd either showed the said letter to Carter, or at least communicated the contents thereof to Carter upon its receipt. That perchance, no representation was made directly to Carter is not conclusive of the case. Chisolm v. Gadsden, 1 Strob. 220, 32 S.C.L., is authority for the following propositions. False and fraudulent representations may be made by actions as well as by words. He who makes use of another in a transaction calculated and intended to mislead is himself guilty of the deception. Any fraudulent conduct injurious to another is actionable. While most of our modern fraud and deceit decisions have been predicated upon representations made directly to the injured party, we know of no decision which has even attempted to repudiate the sound principles...
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