Johnson v. Asheville Hosiery Co.

• Court: North Carolina Supreme Court
• Writing for the Court: BROGDEN, J.
• Citation: Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591 (N.C. 1930)
• Decision Date: 16 June 1930
• Docket Number: 607-C.
• Parties: JOHNSON v. ASHEVILLE HOSIERY CO. et al.

153 S.E. 591

199 N.C. 38

JOHNSON v. ASHEVILLE HOSIERY CO. et al.

No. 607-C.

Supreme Court of North Carolina

June 16, 1930

Appeal from Superior Court, Buncombe County; Sink, Special Judge.

Proceeding under the Workmen's Compensation Act by Lewis H. Johnson claimant, opposed by the Asheville Hosiery Company, employer and the Maryland Casualty Company, insurer. An award granted by one member of the Industrial Commission was affirmed by the full commission on appeal, and was again affirmed on appeal to the Superior Court, and the employer appeals.

Affirmed.

The plaintiff filed a claim with the Industrial Commission under the Workmen's Compensation Act (Pub. Laws 1929, c. 120) for injuries sustained in falling off a scaffold while engaged in painting a factory of the defendant. The plaintiff was a painter and was called by the defendant to repair a spray gun at its plant. While performing this work the plaintiff was employed to paint the ceiling of the factory of defendant at an agreed price of $1.25 per hour. The defendant furnished the paint and a helper. No time was fixed in which the work was to be completed. The room in which the plaintiff was painting the ceiling was occupied by machinery and used in the regular business of defendant. It was advisable to paint the ceiling white in order to afford more light in the room. The evidence tended to show that the defendant told the plaintiffs "when to paint and where," and furthermore, that the defendant had the right under the verbal contract to discharge the plaintiff at any time the work was not progressing to its satisfaction. Mr. Baer, an official of the defendant, was asked the following question: "Do you consider painting the mill as incidental to your operating, that is, in the course of your business as a hosiery manufacturer?" The witness answered: "Yes sir, it would be a part of the maintenance of the mill the same as it is necessary to keep the roof repaired. It is not absolutely necessary that the ceiling be painted and kept painted in a light color in order to afford the proper light for the employees, but it is better. It also protects the ceiling, like the roof and girders it is subject to the actions of the elements." There was evidence to the effect that it would require about four days to complete the work.

The cause was heard by Commissioner Dorsett and an award made.

Upon appeal to the full commission it was found as a fact "that on July 14, 1929, the plaintiff was injured, the said injury resulting from an accident arising out of and in the course of certain employment." The full commission affirmed the award and there was an appeal to the Superior Court. The judge of the Superior Court affirmed the judgment and award of the Industrial Commission, from which judgment the defendant appealed.

Lee & Lee, of Asheville, for appellant.

J. C. Cheesborough, of Asheville, for appellees.

BROGDEN J.

Two questions of law are presented by the record.

1. Was the plaintiff an independent contractor and therefore not entitled to compensation?

2. Was the employment "both casual and not in the course of the trade, business, profession or occupation of his employer?"

Upon the facts appearing in the record, the first question of law must be answered in the negative. "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." Greer v. Construction Co., 190 N.C. 632, 130 S.E. 739, 742. The principle thus announced is amply supported by the authorities assembled in the Greer Case, supra.

In the case at bar the employer directed the progress of the work and reserved control of the plaintiff and other workmen.

These facts exclude the theory of independent contractor.

The second question of law involves the construction of section 2(b) of the Compensation Act. Said section undertakes to define the word employment and specifically excludes from the operation of the act "persons whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer," etc. By virtue of the express terms of the statute, in order to exclude an employee, his employment must be casual, and, in addition thereto, not in the course of the business of the employer. In other words, even if the employment be casual, the employee is not deprived of the benefits of the act if the employment is in the course of the business of the employer. It is further provided in section 60 that the award of the Commission "shall be conclusive and binding as to all questions of fact." However, errors of law are reviewable.

It is generally held by the courts that the various compensation acts of the union should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow, and strict interpretation. Hence it is generally held that provisos excluding an employee from the broad and comprehensive definition of such term ought to be strictly construed in order that the predominating purposes of the act may be fully effectuated. National Cast Iron Pipe Co. v. Higginbotham, 216 Ala. 129, 112 So. 734; Eddington v. Northwestern Bell Telephone Co., 201 Iowa, 67, 202 N.W. 374.

Appellate courts throughout the nation have adopted divergent views in interpreting the word "casual" and the words "course of the trade, business, profession or occupation of his employer." These views, however, are produced by the variable wording of given statutes. In some instances, if the employment is casual, the injured employee is not entitled to the benefits of the statute. In others, if the employment is not in the...