Lucas v. Li'l General Stores

• Decision Date: 29 January 1976
• Docket Number: No. 14,14
• Citation: 221 S.E.2d 257,289 N.C. 212
• Parties: Ola Blanton LUCAS, widow of Leonard M. Lucas, Deceased, Employee. v. LI'L GENERAL STORES, a Division of General Host Corporation, Employer, andLiberty Mutual Insurance Company, Carrier.
• Court: North Carolina Supreme Court

Page 257

221 S.E.2d 257

289 N.C. 212

Ola Blanton LUCAS, widow of Leonard M. Lucas, Deceased, Employee. v. LI'L GENERAL STORES, a Division of General Host Corporation, Employer, andLiberty Mutual Insurance Company, Carrier.

No. 14.

Supreme Court of North Carolina.

Jan. 29, 1976.

Basil L. Whitener and Anne M. Lamm, Gastonia, for plaintiff.

Mullen, Holland & Harrell, P.A., by James Mullen, Gastonia, for defendants.

LAKE, Justice.

It is well settled that to be entitled to maintain a proceeding for compensation under the Workmen's Compensation Act the claimant must have been an employee of the alleged employer at the time of his injury, or, in case of a claim for death benefits, the deceased must have been such an employee when injured. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240; Askew v. Tire Co., 264 N.C. 168, 141 S.E.2d 280; Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645; Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137. Otherwise, the Act simply has no application to the claim. Thus, the existence of the employer-employee relationship at the time of the accident is a jurisdictional fact. Notwithstanding G.S. 97--86, the finding of a jurisdictional fact by the Industrial Commission is not conclusive upon appeal even though there be evidence in the record to support such finding. The reviewing court has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record. Hicks v. Guilford County, supra; Askew v. Tire Co., supra; Richards v. Nationwide Homes, supra. The claimant has the burden of proof that the employer-employee relation existed at the time the injury by accident occurred.

The Workmen's Compensation Act, in G.S. 97--2(2), defines the term 'employee,' as used in the Act, as follows:

'The term 'employee' means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of trade, business, profession or occupation of his employer * * *.'

This statutory definition adds nothing to the common law meaning of the term. Hayes v. Elon College, supra. As Chief Justice Stacy, speaking for the Court, said in Hollowell v. Department of Conservation and Development, 206 N.C. 206, 173 S.E. 603, 'An 'employee' is one who works for another for wages or salary, and the right to demand pay for his services from his employer would seem to be essential to his right to receive compensation under the Workmen's Compensation Act, in case of injury sustained by accident arising out of and in the course of the employment.' Whether this relationship existed at the time of the injury by accident is to be determined by the application of the ordinary common law tests. Richards v. Nationwide Homes, supra; Scott v. Lumber Co., 232 N.C. 162, 59 S.E.2d 425; Hollowell v. Department of Conservation and Development, supra.

In the present case, the Court of Appeals said: 'We find * * * that decedent was not an 'employee' within the meaning of the Workmen's Compensation Act. There being no employer-employee relationship, the Industrial Commission could not take cognizance of the claim. The order granting plaintiff's claim is reversed.' Having reviewed the entire record we concur in this finding and conclusion of the Court of Appeals.

It is clear from the evidence that had Mr. Lucas not been injured in the robbery, he would have had no enforceable claim against Li'l General Stores for compensation for any services rendered by him at the Carolina Avenue store during the week of the robbery. 'One who voluntarily assists a servant at the latter's request does not, as a general rule, become the servant of the master so as to impose upon the latter, the duties and liabilities of a master toward such volunteer, or so as to render the master liable to third persons injured by such volunteer's acts or negligence, while rendering such assistance.' Reaves v. Power Co., 206 N.C. 523, 174 S.E. 413.

It is undisputed that Mr. Lucas was discharged by Li'l General Stores because he sold beer to a minor in violation of the law of North Carolina and of the policy of Li'l General Stores. Having been employed as Manager of the store at which he was shot, he was familiar with the organization of the company and the limits of the authority of his wife who had succeeded him as Acting Manager of this store.

There is evidence that Mr. Lucas was frequently in the store after his discharge and, while there, did various things to assist his wife in her work. This is entirely consistent with the desire of an unemployed husband to be in the company of his wife at her place of employment, such association not being calculated to disturb her in her work, and to assist her in the performance of her duties, especially where, as here, the wife would otherwise be working alone at night in a location attractive to armed robbers. Even if the claimant's evidence be viewed in the light most favorable to her contention and the evidence for the company be disregarded, the claimant's evidence fails to show the existence of the employer-employee relation between the company and Mr. Lucas. At most, it would support a finding that the claimant, the District Manager, and Mr. Lucas were in collusion to deceive the company with reference to the fact of Mr. Lucas' working at the store.

The testimony of the District Manager is that he knew nothing about this and did not authorize it or consent thereto. His testimony is corroborated by the testimony of other witnesses. At the time of his testimony, he had already voluntarily given notice of his own resignation from the...