Henderson v. Manpower of Guilford County, Inc., 8310IC941

• Citation: 70 N.C.App. 408,319 S.E.2d 690
• Decision Date: 18 September 1984
• Docket Number: No. 8310IC941,8310IC941
• Court: Court of Appeal of North Carolina (US)
• Parties: Robert L. HENDERSON, Plaintiff-Employee, v. MANPOWER OF GUILFORD COUNTY, INC., and/or Benner & Fields, Inc., Defendant-Employers, and The Home Indemnity Company and/or Michigan Mutual Insurance Company, Defendant-Insurance Carriers.

Page 690

319 S.E.2d 690

70 N.C.App. 408

Robert L. HENDERSON, Plaintiff-Employee, v. MANPOWER OF GUILFORD COUNTY, INC., and/or Benner & Fields,

Inc., Defendant-Employers,

and

The Home Indemnity Company and/or Michigan Mutual Insurance

Company, Defendant-Insurance Carriers.

No. 8310IC941.

Court of Appeals of North Carolina.

Sept. 18, 1984.

Tuggle, Duggins, Meschan & Elrod by J. Reed Johnston, Jr., Greensboro, for defendants-appellants Manpower of Guilford County, Inc. and The Home Ins. Co.

Shope, McNeil & Maddox by E. Thomas Maddox, Jr., Greensboro, for defendants-appellees Benner & Fields, Inc. and Michigan Mut. Ins. Co.

PHILLIPS, Judge.

The only question presented is whether plaintiff was employed solely by Manpower, as determined by the Industrial Commission, or was employed jointly by Manpower and Benner & Fields, as the appellants contend. We hold that plaintiff was employed both by Manpower and Benner & Fields and that both are therefore liable for the Workers' Compensation payments received by plaintiff. Leggette v. McCotter, 265 N.C. 617, 144 S.E.2d 849 (1965).

The Commission's conclusion that plaintiff was not an employee of Benner &amp Fields was primarily based on the following finding of fact:

6. Although defendant-Manpower furnished no tools or materials, only Manpower could fire or hire the employees which they send to their customers. Because defendant-Manpower exercised ultimate control over the employees they sent to defendant-Benner & Fields, defendant-Manpower is singly liable for the injuries suffered by plaintiff in the course of his employment with Manpower.

Not only is this finding of fact not supported by competent evidence, but the evidence before the Commission indisputably established otherwise.

William Chambers, Manpower's Industrial Manager, testified that:

Manpower furnished no materials or tools at all for Mr. Henderson in connection with his work with Benner & Fields. Mr. Hunt had control over the manner and methods in which a particular job is done for a customer. When we get an order we are also told who the supervisor is that the men will be working for and the supervisor they are to report to. Once they get on the job they are under his supervisor [sic] one hundred percent. We furnish no supervision on jobs. This is customary and usual for Manpower. On this particular job on March 16, 1981 we were furnishing no supervision whatsoever to Mr. Henderson with respect to this particular job, nor did we furnish any tools or any materials.

....

Benner & Fields was not obligated to continue to use the services of Mr. Henderson for any period of time. Mr. Henderson was subject to discharge from working for Benner & Fields at the discretion of Benner & Fields. When a person such as Mr. Henderson came and applied for temporary help with Manpower, Manpower did not guarantee that he would be furnished with a job. Mr. Henderson was not paid any wages until he was assigned a job for a customer of Manpower.

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When we send an employee out to work for a customer that employee works for the customer only as long as the customer needs him. It is the customer's needs that we are furnishing. In Mr. Henderson's case if after working for Benner & Fields for a short time they told him they didn't think he could handle the job and they didn't believe they could use him for the rest of the day and he left Benner & Fields, he would still be employed by Manpower. As to whether only Manpower has the power to fire and hire the people that we send out to customers, that is true.

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It was Benner & Fields' supervisor's responsibility to assign particular duties to Mr. Henderson for this job. The supervisor had supervision over the manner and method in which Mr. Henderson carried out his duties. Manpower did not benefit in any way from the activity or services that Mr. Henderson was carrying out on the job site at Benner & Fields other than the $6.25 an hour that was paid.

Irvin Angel, Benner & Fields' President, testified:

As to whether Benner & Fields would direct the method and manner in which Mr. Henderson performed the duties that he was doing, we would direct the work to be done. The manner in which he does would be his own skills. If the manner in which it was done was not satisfactory we couldn't keep him on the job. The manner and method in which Mr. Henderson, Mr. Carter and any other person that was sent over by Manpower did his work was under the supervision of Mr. Hunt. As to whether in Mr. Henderson's case if we were not satisfied with the manner in which he was doing the work or his ability to take directions, we would not keep him if he was unsatisfactory, because Manpower's responsibility was to furnish those people skilled. Benner & Fields was not obligated to keep any person on the job site sent over by Manpower if he was not satisfactory. By him being not satisfactory, that is a decision Benner & Fields would make.

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If we were dissatisfied with one of Manpower's employees, we would call Manpower and tell them that he was not performing his duties satisfactorily and he would likely be replaced. As to whether Manpower or us would replace him, Manpower.

No evidence to the contrary was offered. In our judgment, the evidence presented establishes as a matter of law that plaintiff was the employee of both Manpower and Benner & Fields within the contemplation of the Workers' Compensation Act. It shows that: Cutting trees and clearing land, the work that injured plaintiff, was entirely the work of Benner & Fields. In doing that work, plaintiff was under the sole control and supervision of Benner & Fields, who not only controlled the details of that work, but had the right to discharge plaintiff from that work at will. Manpower had no control whatever over plaintiff while he was working for Benner & Fields, nor did it have any interest in controlling him during such time, since its business is hiring employees to others for their use, and it had hired plaintiff to...