Cooper v. Colonial Ice Co

• Decision Date: 02 March 1949
• Docket Number: No. 89.,89.
• Citation: 51 S.E.2d. 889,230 N.C. 43
• Parties: COOPER et al. v. COLONIAL ICE CO. et al.
• Court: North Carolina Supreme Court

51 S.E.2d. 889

230 N.C. 43

COOPER et al.

v.COLONIAL ICE CO. et al.

No. 89.

Supreme Court of North Carolina.

March 2, 1949.

BARNHILL, J., dissenting.

Appeal from Superior Court, Wilson County; W. J. Bone, Judge.

Proceeding under the Workmen's Compensation Act by Lilly Cooper, widow, and others for compensation for death of William Lee Cooper, opposed by Colonial Ice Company, employer, and Hartford Accident & Indemnity Company, insurance carrier. From a judgment affirming an award of compensation, the employer and insurance carrier appeal.

Affirmed.

Claim by dependants of William Lee Cooper under Workmen's Compensation Act for compensation for fatal injury by accident arising out of and in the course of his employment by defendant Colonial Ice Co.

The facts found by the Industrial Commission, and upon which it based an award may be summarized as follows:

Ten years before his death William Lee Cooper entered into an oral arrangement with Colonial Ice Co. for the sale and delivery of ice in specified territory in Wilson. Defendant agreed to furnish him a horse and wagon, and all equipment used in connection with retail delivery of ice. The name of the Colonial Ice Co. was on the wagon. According to this arrangement each morning during the season Cooper was to obtain a load of ice at defendant's plant and was charged $1.20 for each block which he was to sell at the Company's regular retail price of $1.80. Cooper was to begin work at 7 A.M. and quit before dark. Whenever orders were received by the defendant for ice to be delivered in the territory served by Cooper these orders were turned over to Cooper to make delivery, and defendant would deliver additional ice to his wagon when requested. Each day when Cooper returned from selling ice, he paid the Ice Company at the specified rate and was credited with ice unsold. The defendant had right to terminate the agreement at any time or discharge him if work was unsatisfactory. A similar arrangement applied to retail sale of coal. At times Cooper was on the defendant's payroll for other work at the plant. The Industrial Commission found his hours of work, territory, and other details concerning the sale and delivery of ice were supervised by defendant, and that the arrangement for purchase and payment of ice was in effect a method of calculating his wages and obtaining payment for ice delivered by him. Cooper kept the horse and wagon in defendant's plant and he fed the horse on materials furnished by defendant. Defendant's manager testified, "During the winter months of '46 and '47 he was on the payroll." Defendant did not allow him to haul on the wagon more than six blocks of ice at the time. Cooper sold ice ticket books and turned the money over to defendant, thereafter accepting tickets as cash. In October 1947, while Cooper was engaged under this arrangement in delivering ice, he was struck by a motortruck and injured, and died in consequence. In defendant's form report of the injury (employer's report of accident to employee) transmitted to the Indus-trial Commission October 16, 1947, the Colonial Ice Co. was named as "employer" and "ice delivery" was put down as Cooper's "regular occupation." In response to the question, "How long employed by you" defendant wrote, "10 years." "Piece or time work?" "Piece."--10 hours per day, 6 days per week, average weekly earnings $40.

The Industrial Commission found that Cooper's fatal injury was by accident arising out of and in the course of his employment by defendant Ice Company, and awarded compensation in accord with the statute. On appeal by the defendants to the Superior Court the action of the Industrial Commission was in all respects affirmed, and defendants appealed to this Court.

Connor, Gardner & Connor and Cyrus F. Lee, all of Wilson, for plaintiffs, appellees.

Ruark & Ruark, of Raleigh, for defendants, appellants.

DEVIN, Justice.

The defendants denied liability on the ground that the decedent William Lee Cooper, at the time of his injury, was not an employee of the defendant Colonial Ice Co. within the meaning of the statute, G. S. § 97-2(b), but was an independent contractor. It was urged that the facts, as such, found by the Industrial Commission sustain the defendants' view, and are insufficient to support an award in favor of claimants under the Workmen's Compensation Act. G.S. § 97-1 et seq.

In order to implement the remedial purposes of the Workmen's Compensation Act the Industrial Commission is constituted the fact-finding body, and the statute declares that the findings of this Commission shall be "conclusive and binding as to all questions of fact." G.S. § 97-86; Hunter v. Peirson, 229 N.C. 356, 49 S.E. 2d 653; Gabriel v. Town of Newton, 227 N.C. 314, 42 S.E.2d 96; Smith v. Southern Waste Paper Co, 226 N.C. 47, 36 S.E.2d 730; Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515; Cloninger v. Ambrosia Cake Bakery Co, 218 N.C. 26, 9 S.E.2d 615; Lockey v. Cohen, Goldman & Co, 213 N.C 356, 196 S.E. 342; Carlton v. Bernhardt-Seagle Co., 210 N.C. 655, 188 S.E. 77. But this does not mean that the conclusions of the Commission from the facts found are in all respects unexceptionable. Perley v. Ballinger Paving Co., 228 N.C. 479, 46 S.E.2d 298. Or as expressed by Justice Denny in Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109, 110, "Where the facts are found by the Commission under a misapprehension of the law, the court is not bound by such findings." ...