Henderson v. Manpower of Guilford County, Inc., No. 8310IC941

• Docket Nº: No. 8310IC941
• Citation: 70 N.C.App. 408, 319 S.E.2d 690
• Case Date: September 18, 1984
• Court: Court of Appeal of North Carolina (US)

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 &

Page 692

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 [70 N.C.App. 411] 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.

* * *

* * *

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.

* * *

* * *

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:

[70 N.C.App. 412] 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...