Evans v. Tabor City Lumber Co.

• Decision Date: 24 May 1950
• Docket Number: No. 596,596
• Citation: Evans v. Tabor City Lumber Co., 232 N.C. 111, 59 S.E.2d 612 (N.C. 1950)
• Parties: EVANS, v. TABOR CITY LUMBER CO. et al.
• Court: North Carolina Supreme Court

Page 612

59 S.E.2d 612

232 N.C. 111

EVANS, v.TABOR CITY LUMBER CO. et al.

No. 596

Supreme Court of North Carolina.

May 24, 1950

David M. Britt, Fairmont, for defendants-appellants.

J. B. Eure, Whiteville, for plaintiff-appellee.

STAWELL, Justice.

Our review concerns a claim of the plaintiffclaimant filed with the Industrial Commission against the defendant lumber company for whom its codefendant insurance company is insurance carrier, and defendant Martin, non-insurer, as employers, seeking an award for an injury for which it is contended they are liable under the Workmen's Compensation Law.

The hearings before the Industrial Commission resulted in an award of compensation to the claimant, and from this award an appeal was taken to the Superior Court where the award was affirmed; and the defendants or respondents appealed to this Court.

The claimant contends that at the time of his injury he was in the employment of the defendant Martin in logging timber from a tract of land in Columbus County, and that Martin was sub-contractor of the logging operations under his codefendant, the Waccamaw Lumber Company, which because of its relationship to the owners of the timber, Holliday Brothers, was the original contractor in such logging operation, and that both the defendant Martin and his codefendant, the Waccamaw Lumber Company and the insurance carrier are all liable under the Workmen's Compensation Act, G.S. § 97-19, which reads as follows: 'Any principal contractor, intermediate contractor, or sub-contractor who shall sublet any contract for the performance of any work without requiring from such sub-contractor or obtaining from the Industrial Commission a certificate, issued by the Industrial Commission, stating that such sub-contractor has complied with § 97-93 hereof, shall be liable, irrespective of whether such sub-contractor has regularly in service less than five employees in the same business within this state to the same extent as such sub-contractor would be if he had accepted the provisions of this Article for the payment of compensation and other benefits under this article on account of the injury or death of any employee of such sub-contractor, due to an accident arising out of and in the course of the performance of the work covered by such sub-contract.If the principal contractor, intermediate contractor, or subcontractor shall obtain such certificate at the time of subletting such contract to sub-contractor, [they] shall not thereafter be held liable to any employee of such sub-contractor for compensation or other benefits under this article.The Industrial Commission, upon demand, shall furnish such certificate, and may charge therefor the cost thereof, not to exceed twenty-five (25) cents.Any principal contractor * * * paying compensation or other benefits under this article, under the foregoing provisions of this section, may recover the amount so paid from any person, persons, or corporation who, independently of such provision, would have been liable for the payment thereof.Every claim filed with the Industrial Commission under this section shall be instituted against all parties liable for payment, and said Commission in its award, shall fix the order in which said parties shall be exhausted, beginning with the immediate employer.'

Inasmuch as it is admitted, or at least the evidence clearly shows, that the injury was by accident arising out of the employment and in course thereof, and that at that time the combined number of employees of Martin and the Waccamaw Lumber Corporation exceeded the number required for application of the Act and other facts necessary to sustain the award, the controversy narrows down to the determination of the relationship existing between the Waccamaw Lumber Corporation and Holliday Brothers, of South Carolina, respecting the ownership of the timber which Martin was cutting and carrying to the mill site of the Lumber Company and for which the latter company was paying Holliday Brothers a stipulated price per thousand feet as and when the timber was cut and delivered to the mill.

The evidence on that particular point, mostly advanced by the defendantLumber Company or its officers and codefendant Martin is substantially as follows:

W. F. Maurer, secretary of the Waccamaw Lumber Corporation, testified repeatedly that the lumber company did not purchase the timber on the tract and that it belonged to Holliday Brothers:

'Q.So that the Waccamaw Lumber Co. did own the timber?A. Waccamaw Lumber Company did do what?

'Q.Did own the timber?A.No, I said we just paid for it as it was cut.

'Q.My understanding, Mr. Maurer, that you said the Waccamaw Lumber Company bought the timber and Mr. Martin cut it?A.I said that the timber belonged to the Holliday Brothers which is, I imagine, the P. D. Farms, Inc., Gallavant's Ferry, S. C.

'Q.Well now, did Mr. Martin buy the timber?A.No sir, he did not buy it.

'Q.Who bought it?A.Nobody bought it.We paid for it as it was cut.

'Q.Well, didn't you all buy it?A.We didn't buy it until we had it.Then we bought it.

'Q.Mr. Maurer, I think we're just splitting hairs here a little bit.A.Can I tell you this, where we buy the timber, that tract, that timber we consider ours.We can cut it when we want to.

'Q.Well, as I understand it, the officials of the Waccamaw Lumber Company made a trade with the owner of this timber by which the Waccamaw Lumber Company after having the timber cut and hauled to the mill, to pay the original owner of the timber so much a thousand for what they had cut and hauled to the mill, is that correct?A.Yes sir.'

The defendant Martin testified: 'Mr. Maurer has testified correctly as to my relationship with the company.'Pursuant to questions by the court, he further testified:

'I know the arrangements Waccamaw Lumber Company had with the owners of the land where claimant was hurt.The Hollidays wanted to sell the timber and they couldn't agree on a lump price, therefore, Waccamaw Lumber Company agreed to deliver them $20.00 per thousand feet for what they cut.After it was delivered to the mill they were to give them $20.00 a thousand for the logs.The timber was to be cut clean, ten inches up.They couldn't agree on the stumpage so agreed by the thousand and were to be paid after the logs were delivered to the mill.

'This is the usual agreement on a tract of timber where they can't agree on a lump sum.Sometimes they go out in thewoods, look at the timber and when they can't agree on the footage they get down and agree per thousand.'

Upon this evidence the commission found as facts:

'That the defendant, the Waccamaw Lumber company, sometime prior to the date the plaintiff was injured, entered into an agreement or contract with the owners of the tract of timber where the plaintiff was working at the time he was injured to cut said timber, transport it to the mill and to pay the said owners of the timber, namely, the Holliday Brothers, the sum of $20.00 per thousand after the logs were delivered to the mill for the amount which was cut by said Waccamaw Lumber Company.The agreement, which was oral, further provided that the timber which was cut was to be cut clean and not more than ten inches from the ground; that the defendant, the Waccamaw Lumber Company, was therefore the principal contractor in connection with the cutting of the timber on the tract of land on which the plaintiff was injured.

'The Commission specifically finds as a...