Greene v. Spivey

• Decision Date: 19 November 1952
• Docket Number: No. 23,23
• Citation: 236 N.C. 435,73 S.E.2d 488
• Parties: GREENE et al. v. SPIVEY et al.
• Court: North Carolina Supreme Court

Page 488

73 S.E.2d 488

236 N.C. 435

GREENE et al. v. SPIVEY et al.

No. 23

Supreme Court of North Carolina.

Nov. 19, 1952

I. Weisner Farmer, Raleigh, for American Mut. Liability Ins. Co., defendant, appellant.

Marvin Wilson, Edenton, for O. R. Spivey, defendant, appellee.

JOHNSON, Justice.

American Mutual's appeal from the Industrial Commission to the Superior Court, being unsupported by any specific exception to any finding of fact of the Commission, amounted to nothing more than a general exception to the decision and award of the commission, and was insufficient to challenge the sufficiency of the evidence to support the findings of fact of the Commission or any one of them. The appeal carried up for review in the Superior Court the single question whether the facts found by the Commission support the decision and award. Parsons v. Swift & Co., 234 N.C. 580, 68 S.E.2d 296; Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609. See also In re Same, 236 N.C. 228, 72 S.E.2d 421. And in turn, the general exception to the judgment signed by Judge Williams brings here for review the single question whether the facts found support the decision and award. Rader v. Queen City Coach Co., supra; Brown v. L. H. Bottoms Truck Lines, 227 N.C. 65, 40 S.E.2d 476; Fox v. Cramerton Mills, Inc., 225 N.C. 580, 35 S.E.2d 869. See also Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351, and cases there cited.

On the record as presented it has not been made to appear that Judge Williams either ruled upon, or was required to rule upon, any specific finding of fact of the Industrial Commission. This being so, it is too late for American Mutual to attempt to challenge for the first time in this Court (by assignments of error directed to specific findings of the Industiral Commission) the sufficiency of the evidence to support these crucial findings of the Commission: (1) that R. P. Baer, executive officer of Halsey Hardwood, was constituted the agent of American Mutual with power and direction to effect the insurance coverage of Spivey; (2) that Baer brought about the coverage of Spivey; (3) that the premiums were paid by Spivey to Halsey Hardwood in accordance with the instructions given him; and (4) that Halsey Hardwood in turn remitted the premimums along with its own to American Mutual. This is an appellate court. Our function, under the Constitution, is to review alleged errors and rulings of the trial court, and unless and until it is shown that a trial court ruled on a particular question, it is not given for us to make specific rulings thereon. Article IV, Section 8, Constitution of North Carolina; Grandy v. Walker, 234 N.C. 734, 68 S.E.2d 807; Leggett v. Southeastern Peoples College, 234 N.C. 595, 68 S.E.2d 263; Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888.

It thus appears that the decisive question presented by this appeal is: Are the facts found by the Industrial Commission sufficient to support the adjudication that American Mutual Liability Insurance Company was the compensation carrier of O. R. Spivey, employer of the deceased Henry Greene, at the time of his fatal injury, and liable for payment of the compensation due on account of Greene's death?

As to this, the Commission found as a fact that R. P. Baer, an official of Halsey Hardwood, was the agent of American Mutual with power and direction to effect the compensation insurance coverage of Spivey. This is conceded by American Mutual. It is also conceded that Baer, acting on this authorization, effected Spivey's coverage on or about 1 February, 1949, and that for a time thereafter Spivey's operations were effectively covered.

However, American Mutual takes the position that its contract with Spivey furnished coverage of his workers only while and so long as he was selling and delivering logs to Halsey Hardwood.

Thus, American Mutual urges that when Spivey delivered his last load of logs to Halsey Hardwood on 7 May, 1949, his insurance coverage thereupon ceased and terminated, thus freeing this company from liability for the fatal accident suffered by Greene on 19 July, 1949.

This contention that Spivey's insurance coverage was conditional and terminable, as urged by American Mutual, is predicated upon the theory that the insuring agreement was made by the parties in contemplation of the provisions of G.S. § 97-19 as amended. This statute provides in pertinent part as follows:

'Any principal contractor, intermediate contractor, or subcontractor who shall sublet any contract for the performance of any work without requiring from such subcontractor or obtaining from the Industrial Commission a certificate, issued by the Industrial Commission, stating that such subcontractor has complied with § 97-93 hereof, shall be liable, irrespective of whether such subcontractor has regularly in service less than five employees in the same business within this State, to the same extent as such subcontractor 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 subcontractor, due to an accident arising out of and in the course of the performance of the work covered by such subcontract. * * *

'The principal or owner may insure any or all of his contractors and their employees in a blanket policy, and when so insured such contractor's employees will be entitled to compensation benefits regardless of whether the relationship of employer and employee exists between the principal and the contractor.'

Here, American Mutual takes the position that Spivey's insurance coverage rested solely upon, and was dependent on the continued existence of, an insurable interest which it asserts Halsey Hardwood had in Spivey's operations by reason of the relation of principal contractor and subcontractor between Halsey Hardwood and Spivey within the meaning of G.S. § 97-19. Therefore, American Mutual urges that he stoppage of Spivey's log deliveries to Halsey Hardwood, ipso facto, terminated Spivey's insurance coverage.

The manifest purpose of this statute, enacted as an amendment to the original Workmen's Compensation Act, is to protect employees of irresponsible and uninsured subcontractors by imposing ultimate liability on principal contractors, intermediate contractors, or subcontractors, who, presumably being financially responsible, have it within their power, in choosing subcontractors, to pass upon their financial responsibility and insist upon appropriate compensation protection for their workers. It is also the obvious aim of the statute to forestall evasion of the Workmen's Compensation Act by those who might be tempted to subdivide their regular operations with the workers, thus relegating them for compensation protective to shall subcontractors, who fail to carry, or if small enough, may not even be required to carry, compensation insurance. Withers v. Black, 230 N.C. 428, at page 434, 53 S.E.2d 668. Lawson, Workmen's Compensation Law, Vol. 1, Sec. 49.11, p. 724; 58 Am. Jur., Workmen's Compensation, Sec. 139. See also Annotations: 58 A.L.R. 872; 105 A.L.R. 581.

The statute at hand has no application to the relationship between Halsey Hardwood and Spivey as shown by this record. Here, there is neither evidence nor finding of fact that Halsey Hardwood at any time sublet any part of its logging operations or other work to Spivey, nor made any contract with him for the performance of work of any kind. All the evidence tends to show, and the facts are so found by the Commission, that Spivey was cutting timber which he owned absolutely under direct purchase from the owner of the stumpage. Halsey Hardwood had no...