Graham v. Wall

• Court: North Carolina Supreme Court
• Citation: Graham v. Wall, 220 N.C. 84, 16 S.E.2d 691 (N.C. 1941)
• Decision Date: 08 October 1941
• Docket Number: 97.
• Parties: GRAHAM v. WALL et al.

16 S.E.2d 691

220 N.C. 84

GRAHAM v. WALL et al.

No. 97.

Supreme Court of North Carolina

October 8, 1941

This was a claim under the Workmen's Compensation Act, in which the claimant sought compensation for injuries which he alleged were caused by an accident which occurred on the 16th day of November, 1939, in the course of his employment. The claimant at the time of his injury was working for H. E Elkins, who at that time was completing the electrical work on the Plaza Theatre job in the City of Asheville under an agreement and contract entered into by and between H. E Elkins as subcontractor and W. R. and F. E. Wall, trading and doing business as Wall Brothers, general contractor.

The defendants Wall Brothers and their compensation carrier Great American Indemnity Company, denied liability to the plaintiff and on the ground that the claimant, George W Graham, was not at the time of his injury an employee of Wall Brothers.

Claimant demanded a hearing before the Industrial Commission and at such hearing the evidence was taken and a findings of fact made as appear in the record, and an award entered awarding to the claimant compensation in accordance with the terms of the act against Wall Brothers and Great American Indemnity Company, insurance carrier for Wall Brothers, and dismissed the action as to the defendant H. E. Elkins. From this opinion and award the defendants Wall Brothers and their insurance carrier appealed to the Full Commission.

Upon a hearing by the Full Commission the award of the hearing Commissioner was affirmed, and defendants thereupon appealed to the Superior Court of Buncombe County.

Upon the matter coming on to be heard before Nettles, J., the cause was remanded to the Full Commission for further findings of fact, and the Full Commission thereupon amended and revised its findings of fact and again affirmed the award. From this award defendants appealed to the Superior Court, and upon a hearing before Bobbitt, J., the award of the Commissioner was affirmed, and from such judgment defendants appealed to the Supreme Court.

The defendants, Wall Brothers and their insurance carrier, denied liability to the claimant on the ground that at the time of claimant's injury he was an employee of H. E. Elkins and not an employee of Wall Brothers; that an independent contract as to the electrical work on the Plaza Theatre job existed at all times as between H. E. Elkins and Wall Brothers; that H. E. Elkins at all times referred to in the evidence employed less than five employees; that the Industrial Commission, therefore, did not have jurisdiction of this cause, and that the claimant's recourse was against H. E. Elkins at common law.

Opinion of the Full Commission, January 31, 1941:

"This cause was heard before Chairman T. A. Wilson at Asheville, N. C., February 13, 1940, and the defendants appealed to the Full Commission from the award granting compensation. The Full Commission affirmed the Findings of Fact, Conclusions of Law, and Award of the Single Commissioner, and in due time the defendants took an appeal to the Superior Court of Buncombe County. The case came on for hearing before His Honor, Judge Zeb V. Nettles, and a judgment rendered remanding the case to the Industrial Commission for the purpose of making specific Findings of Fact as set out in said judgment as follows:

"'1. As to whether or not there was a contract, expressed or implied, between the defendants, W. R. and F. E. Wall, and H. E. Elkins.

"'2. If so, what were the facts with respect to the relationship of these contracting parties?

"'3. By whom was the claimant actually employed; by whom was he paid, and for whom was he working at the time of his injury?'

"The Full Commission has again carefully reviewed all of the evidence and briefs filed by counsel for the defendants in this case and affirms the Conclusions of Law and the Ward of the Hearing Commissioner with the exception of the Findings of Fact, which are herewith stricken out, and make the following Findings of Fact as requested in the judgment of the Superior Court signed by Judge Nettles:

"1. That at the time the plaintiff sustained his injury there was no contract existing between W. R. and F. E. Wall, and H. E. Elkins.

"2. That H. E. Elkins was not a contractor in the meaning of the term in the instant case, but in reality he was serving in the capacity as a foreman for the said Wall Brothers, and was acting as such on November 16, 1939, when the plaintiff, George W. Graham, sustained his injury.

"3. That the plaintiff, Graham, was not an employee of H. E. Elkins, but was an employee of the said defendants, W. R. Wall and F. E. Wall, and the Commission finds as a fact that he was an employee of the Wall Brothers.

"4. That the plaintiff sustained an injury in the course of and out of his employment for Wall Brothers and has been totally disabled since the date of his injury.

"5. That the plaintiff's wage was in excess of $30.00 per week.

"The Full Commission affirms and adopts as its own the conclusions of law and the award of the said Hearing Commissioner, and makes the above definite findings of fact, and directs that the appeal of the defendants be dismissed.

"Defendants will pay the costs. Pat Kimzey, Commissioner.

"1/29/41.

"Examined and approved: T. A. Wilson, Chairman. Buren Jurney, Commr."

On appeal to the Superior Court, Bobbitt, J., after making certain recitals consonant with the opinion of the Industrial Commission, rendered judgment for plaintiff as follows:

"Accordingly, it is now Ordered, Adjudged and Decreed that the Findings of Fact and Conclusions of Law and Award of the Full Commission, be and they are hereby affirmed."

Defendant made certain exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

H. Kenneth Lee, of Asheville, for plaintiff.

Harkins, VanWinkle & Walton, of Asheville, for defendants.

CLARKSON Justice.

The main question for our determination on this appeal: Was there sufficient competent evidence for the Industrial Commission to find that when plaintiff received the injury complained of, was H. E. Elkins serving in the capacity as a foreman or servant for defendants Wall and Brothers and plaintiff was therefore an employee of Wall Brothers? We think so.

It is well settled in this jurisdiction, as set forth in Beach v. McLean, 219 N.C. 521, 525, 14 S.E.2d 515, 518: "Hence, under the statute the commission is made a fact-finding body. The finding of fact is one of its primary duties and it is an accepted rule with us that when the facts are found they are, when supported by competent evidence, conclusive on appeal and not subject to review by the Superior Court or by this Court. Cloninger v. Bakery Co., 218 N.C. 26, 9 S.E.2d 615, and cases cited; McGill v. Lumberton, 218 N.C. 586, 11 S. E.2d 873."

In Johnson v. Hosiery Co., 199 N.C. 38, 40, 153 S.E. 591, 592, this Court holds: "An 'independent contractor' has been defined as one who exercises an independent employment, contracts to do a piece of work according to his own judgment and methods and without being subject to his employer except as to the results of the work, and who has the right to employ and direct the action of the workmen, independently of such employer and freed from any superior authority in him to say how the specified work shall be done or what the laborers shall do as it progresses. [Citing Greer v. Construction Co., 190 N.C. 632, 130 S.E. 739]." Gadsden v. Craft & Co., 173 N.C. 418, 92 S.E. 174, 20 A.L.R. 662; Aderholt v. Condor, 189 N.C. 748, 128 S.E. 337; Bryson v. Lumber Co., 204 N.C. 664, 169 S.E. 276.

With the law, as stated, we think there was sufficient competent evidence to sustain the findings of fact of the Industrial Commission. The evidence was to the effect that the original contract made by H. E. Elkins with Wall Brothers made him an independent contractor, but on account of a mistake in the price of material to go into the job the original contract was abrogated and a new one entered into, which altered the relationship.

A statement in the record is as follows: "I am F. E. Wall of Wall Brothers, Contractors, at the time we were bidding on the remodeling of the Plaza Theatre in Asheville we got a bid from H. E. Elkins for the electrical work there. After our bid was turned in and accepted, Mr. Elkins said his price was too low and that he could not go along with it due to the fact that he had failed to figure in some of the necessary fixtures. As a result of this situation we made another agreement with Mr. Elkins that he was to go on with the work with his men and do the job, but that we would pay for the fixtures and carry his men on our payrolls at the completion of the job; in other words we were to pay all the bills in the end covering labor and material. Mr. Elkins agreed not to charge anything for his time or supervision since he got into--since he got us into a bid at too low a figure. He agreed to pay all labor bills as such were incurred, and he has done this to date. At the end of the job he was to turn in his total labor charges, which we would reimburse him for, and set his charge up on our books at that time as a charge against this job for labor. (Signed) F. E. Wall."

H. E Elkins testified, in part: "Decided to let me do it on time and material. In other words, Wall Brothers paid for material used in connection with electric work, and I was furnishing the labor. The agreement we had on this particular job on the completion of the work, I was to get so much per hour for my time. I was to get One Dollar an hour. I had Mr. Cook on the job. I didn't work on the job steady. I left Mr. Cook practically through...