Hayes v. Board of Trustees of Elon College

• Decision Date: 01 March 1944
• Docket Number: 738.
• Citation: 29 S.E.2d 137,224 N.C. 11
• Parties: HAYES et al. v. BOARD OF TRUSTEES OF ELON COLLEGE et al.
• Court: North Carolina Supreme Court

29 S.E.2d 137

224 N.C. 11

HAYES et al. v. BOARD OF TRUSTEES OF ELON COLLEGE et al.

No. 738.

Supreme Court of North Carolina

March 1, 1944

Proceedings before the Industrial Commission for compensation for the death of an alleged employee.

The defendant Board owns a local electric light system which serves its college buildings. It buys electricity wholesale from the Duke Power Company and distributes it over its own system.

One C. W. Wright is the assistant superintendent of Duke Power Company and C. D. Lovett is the business manager of defendant Board.

One of the poles of defendant's system fell down, and it employed Peele Electric Company, a contractor of Burlington N. C., to replace it. At that time, the Duke Power Company having been advised that one of its feed lines was out of order, Wright took one of his electricians, Grimes Moore, and went to the college to investigate. He then advised Lovett that the other poles in the college system were in bad condition, and Lovett said he would like to rebuild the whole system, especially the east side, if he could get the material, and he asked what to do about it. Wright stated that his company could not agree to rebuild but that it employed electricians who did jobs of that kind during their 'off' hours and that he would look into it and see him again later if he could get the material. Several weeks later Lovett got in touch with Wright and told him he had secured the material to rebuild the east side and was ready to go to work.

'I (Wright) first asked him how did he want to do it, by the hour or what, how did he want to go about the pay. I told him that the fellows when they were off from work tried to make time and a half. He said he didn't know anything about the work, so he had rather do it so much for the job. Then he discussed that he would pay $30.00 to do it, and I hold him that I would have to see the boys and see if they would do it for that. Lovett said he would have the holes dug.'

Wright then saw Moore and the deceased, Hayes, and told them of his conversation, and that if they wanted to set the six poles and transfer the wires for $30 that they could do it. Moore and Hayes got another electrician, Dixon, to accompany them and went to the plant of the defendant and had a conversation with Lovett, but compensation was not mentioned. 'He wanted those six poles from that building around to the dining room replaced or set the new ones in and transfer the wire from the old ones to the new ones, and we asked him if we could get some help, there wasn't but three of us, and he said we could get some of the colored boys from over at the plant over there. Lovett said he didn't know anything about the work and he was leaving it up to us to fix it and fix it right. While talking to Lovett the electricians also told him that they did not have all their equipment and asked if they could have a truck to back the poles in. Lovett replied, 'I thought you were going to bring it.' They carried with them their 'climbers' and other electrician's tools, but 'got a shovel and pipe poles.' Defendant also furnished a truck and two helpers.'

'Mr. Hayes asked him about cutting some limbs said if he used those poles there would have to be some limbs cut off. Lovett said he would rather not have the trees cut, he would rather make some arrangements about the poles, said he would rather to take some off the poles than to cut the trees. He told us to cut about ten feet off of each pole. One of the colored fellows went and got a saw, and we cut off the poles.'

Also 'they (the electricians) asked about 'killing' the line. I told them they could have it cut off whenever they liked. I asked them not to cut it off any longer then necessary.'

After they had set four poles they found they had to let the wires down in order to set the fifth pole. Moore climbed the pole and 'untied' the wires and let them drop. The deceased, thinking it was a low voltage wire, caught hold of it to help, and was killed by the high voltage.

After the death of Hayes the other two electricians procured a third party to assist them and worked awhile each day after five o'clock and on Saturdays and Sundays for about two weeks until they completed the job.

When the job was completed Lovett insisted that he made the contract with Wright and tendered a check for $30 payable to Wright. This the electricians refused to accept.

Claim for compensation was filed. The defendant denied that deceased was an employee of the college. The hearing Commissioner made an award which was approved by the full Commission. On appeal the court below affirmed and defendants appealed.

Sapp & Sapp, of Greensboro, for appellants.

Long, Long & Barrett, of Graham, and Smith, Wharton & Jordan, of Greensboro, for appellees.

BARNHILL Justice.

Briefly stated, the defendant Board through Wright contracted with the electricians to rebuild a part of its electric line for the lump sum of $30. The electricians agreed to undertake and complete the job if the defendant would furnish a truck and two helpers. After some discussion about trimming some trees to clear the wires, at the suggestion of Lovett, the poles were shortened so as to clear the wires without cutting the trees. After deceased was killed the work was temporarily stopped, and defendant notified the other electricians it wanted the job completed. They, and not the defendant, obtained other help and completed the job. Defendant paid in a lump sum by check.

What was the relationship created by this contract? Were the electricians, including the deceased, employees or independent contractors? This is the decisive question.

While the Commission concluded that the electricians were employees, this is not controlling. There is no substantial controversy as to the facts. This being true, the relationship created by the contract is a question of law, and the conclusion of the Commission is reviewable. Thomas v. Raleigh Gas Co., 218 N.C. 429, 11 S.E.2d 297; Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515.

The distinction between 'servant' or 'employee' and 'independent contractor' has been frequently discussed and defined by this and other courts as well as by testwriters. Young v. Fosburg Lumber Co., 147 N.C. 26, 60 S.E. 654; Gay v. Roanoke R. & Lumber Co., 148 N.C. 336, 62 S.E. 436; Denny v. Burlington, 155 N.C. 33, 70 S.E. 1085; Beal v. Champion Fiber Co., 154 N.C. 147, 69 S.E. 834; Johnson v. Carolina, C. & O. R. Co., 157 N.C. 382, 72 S.E. 1057; Harmon v. Ferguson Contracting Co., 159 N.C. 22, 74 S.E. 632; Embler v. Gloucester Lumber Co., 167 N.C. 457, 83 S.E. 740; Simons v. John L. Roper Lumber Co., 174 N.C. 220, 93 S.E. 736; Cole v. Durham, 176 N.C. 289, 97 S.E. 33, 11 A.L.R. 560; Greer v. Callahan Construction Co., 190 N.C. 632, 130 S.E. 739; Aderholt v. Condon, 189 N.C. 748, 128 S.E. 337; Drake v. Asheville, 194 N.C. 6, 138 S.E. 343; North Carolina Lumber Co. v. Spear Motor Co., 192 N.C. 377, 135 S.E. 115; Bryson v. Gloucester Lumber Co., 204 N.C. 664, 169 S.E. 276; Kesler Construction Co. v. Dixson Holding Corporation, 207 N.C. 1, 175 S.E. 843; Beach v. McLean, supra; Vogh v. F. C. Geer Co., 171 N.C. 672, 88 S.E. 874; Murray's Case, 130 Me. 181, 154 A. 352, 75 A.L.R. 720; Gulf Refining Co. v. Brown, 4 Cir., 93 F.2d 870, 116 A.L.R. 449; Annotations: 19 A.L.R. 226, 1172, and 20 A.L.R. 686; 14 R.C.L. 65; 27 Am.Jur. 479; Henry v. Mondillo, 49 R.I. 261, 142 A. 230.

It appears from these authorities that the retention by the employer of the right to control and direct the manner in which the details of the work are to be executed and what the laborers shall do as the work progresses is decisive, and when this appears it is universally held that the relationship of master and servant or employer and employee is created.

Conversely, when one exercising 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 result 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 laborers shall do as it progresses, he is clearly an independent contractor.

The vital test is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details.

Many cases are plainly on one side of the equation and may be readily classified as showing the relation of master and servant. Others are just as plainly to be deemed cases of independent contract.

But men are prone to assume the existence of one fact because of the existence of another. And so, often times, the facts are not so definite or the terms of the contract are not so concise and clear as to permit ready and categorical classification without consideration of other circumstances which tend to show into which class the particular case should fall.

What, then, are the elements which ordinarily earmark a contract as one creating the relationship of employer and independent contractor? The cited cases and the authorities generally give weight and emphasis, amongst others, to the following:

The person employed (a) is engaged in an independent business calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he...