MacMullen v. South Carolina Electric & Gas Company

• Decision Date: 07 January 1963
• Docket Number: No. 8578.,8578.
• Citation: 312 F.2d 662
• Parties: John G. MacMULLEN, Appellee, v. SOUTH CAROLINA ELECTRIC & GAS COMPANY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

312 F.2d 662 (1963)

John G. MacMULLEN, Appellee, v. SOUTH CAROLINA ELECTRIC & GAS COMPANY, Appellant.

No. 8578.

United States Court of Appeals Fourth Circuit.

Argued September 25, 1962.

Decided January 7, 1963.

Frank B. Gary and Harold W. Jacobs, Columbia, S. C. (Arthur M. Williams, Jr., Cooper & Gary, and Gene V. Pruet, Columbia, S. C., on the brief) for appellant.

Benny R. Greer and James P. Mozingo, III, Darlington, S. C. (Greer & Chandler, Darlington, S. C., on the brief) for appellee.

Before BOREMAN and BRYAN, Circuit Judges, and JOHN PAUL, District Judge.

BOREMAN, Circuit Judge.

John G. MacMullen, the plaintiff below, brought this action against South Carolina Electric & Gas Company to recover for personal injuries sustained by MacMullen, alleged to have been caused by defendant's negligence while he was working on electrical equipment designed to control automatic coal-loading apparatus being installed as a part of defendant's newly constructed steam power generating plant at McMeekin Station, Irmo, South Carolina. Defendant interposed the defenses necessary to raise the questions presented at the trial. The case was tried before the District Court without a jury and MacMullen was awarded $75,000 in damages. The court found that the work in which plaintiff was engaged was not a part of the trade, business or occupation of the defendant; that MacMullen was no more than a "casual employee" of defendant and was not limited to recovery under the provisions of the South Carolina Workmen's Compensation Law; that the defendant was negligent in allowing the equipment to become electrically energized while MacMullen was working on it; that MacMullen was not contributorily negligent and did not assume the risk and hazard of the work involved. On this appeal defendant challenges each of the court's findings and conclusions. We are of the opinion that the case is controlled by the South Carolina Workmen's Compensation Law which provides an exclusive remedy for MacMullen.

The first issue to be determined is whether the plaintiff was a "statutory employee" of defendant under the South Carolina Workmen's Compensation law¹ (hereinafter referred to as the Act or Compensation Act) and thus precluded from maintaining this common law negligence action. That Act provides (1) that when an "owner" undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with another to perform some part or all of the work, the owner shall be liable to pay any workman employed in the work any compensation under this Act which he would have been liable to pay if the workman had been immediately employed by the owner (Section 72-111); (2) that the owner has the same liability to the employees of a subcontractor of the contractor (Section 72-113); and (3) that the statutory employee to whom the owner is liable under the Act cannot be a mere "casual employee" (Sections 72-11 and 72-107).

MacMullen was not regularly employed directly by the electric company. In determining whether he was a "statutory employee," pertinent are the following questions: Was MacMullen employed by a subcontractor of a contractor with defendant? Was he performing work which was "in the trade, business, or occupation" of defendant? Was he a mere "casual employee" of defendant under the Act?

The District Judge's findings of fact and conclusions are found as reported in MacMullen v. South Carolina Electric & Gas Co., 205 F.Supp. 811. We do not disagree with the learned trial judge in his somewhat abbreviated statement of the historical facts. However, we believe that some amplification of those facts will be helpful in considering the issues and applying the South Carolina law. To that end we have examined the record and find uncontroverted evidence which shows the facts which are hereinafter stated in more detail. Many of these facts were developed in response to questions propounded directly to the witnesses by the trial judge.

The defendant is in the business of producing, distributing and selling electric power in South Carolina. Since the time of incorporation in 1924, although there was a change in corporate name in 1937 and the defendant merged with another corporation in 1943, the defendant's corporate charter has authorized and empowered it to construct, use and operate plants, systems, or parts thereof, for the production, use, distribution and sale of electricity. Some of defendant's employees have been engaged more or less continuously since 1949 in construction of new power generating facilities which were later put into service as part of defendant's power producing and distributing system or that of a subsidiary corporation. Plants constructed or acquired and completed by the defendant for its own use were Plant Hagood at Charleston, South Carolina, completed in 1952; McMeekin Station near Irmo, South Carolina, completed in 1959; Canadys' Station at Canadys, South Carolina, commenced in 1959 and still under construction at the time of the trial below. In addition, defendant's personnel were similarly active in the construction of Urquhart Station at Beech Island, South Carolina, completed about 1956 for South Carolina Generating Company, defendant's subsidiary.

MacMullen's injury occurred on June 13, 1958, and during the last phase of construction of McMeekin Station. It is clear that there was no general contract let by the defendant for the construction of the McMeekin Station and the other new plants mentioned. There was an apparent, though unsuccessful, effort on plaintiff's behalf to show that Gilbert Associates, Inc., of Reading, Pennsylvania, was a prime contractor for such construction, but an examination of the record reveals that the true relationship between the defendant and Gilbert Associates arose following a written proposal submitted by the latter in 1950. Although the defendant did not sign and return the proposal as provided by its terms, oral acceptance by the defendant and repeated demands for services resulted in an effective working relationship under an engineering service contract. A division of functions between defendant and Gilbert Associates was carried out in practice over the period of eight to ten years during the building of the Urquhart, McMeekin and Canadys installations, and Gilbert Associates was employed to do engineering design work and to co-ordinate activities of defendant's personnel and various contractors at the job sites. A letter of July 15, 1955, from defendant authorized Gilbert Associates to proceed with engineering on the McMeekin Station.

It was shown by the evidence that defendant's functions at McMeekin Station were to own and manage the property on which the facility was being constructed, to outline its general requirements, to prepare specific designs for certain parts of the facility, to approve engineering plans and specifications, to provide supervisory personnel (such as an electrical supervisor, a field assistant, a general foreman and warehousemen) reporting to the general construction superintendent, to supply work crews consisting wholly of defendant's own employees, including both laborers and skilled craftsmen, for carrying out various parts of the project not contracted to outsiders, and to provide general assistance in contacting subcontractors and in co-ordinating their activities. Defendant's own employees were used extensively in constructing foundations, providing services such as furnishing compressed air at the work site, warehousing and handling of construction materials and erecting specialized machinery (for example, steam turbines and condensers) under supervision of manufacturers' representatives. On the other hand, Gilbert Associates prepared most of the detailed drawings and specifications for McMeekin Station, submitted them to defendant's chief engineer for approval, worked closely with defendant in all phases of designing, signed contracts with the various contractors "as agents for" defendant and provided a general superintendent with an assistant to generally co-ordinate the construction of the plant on the job site. Positions of foremen, general construction workers and skilled workers were never filled by Gilbert Associates' personnel and defendant had up to two hundred men employed in these activities. Mr. Crews, the general superintendent supplied by Gilbert Associates at McMeekin Station, described his job as "consulting" and "coordinating" at the job site.

On November 27, 1956, Fairfield Engineering Company, of Marion, Ohio, obtained a contract to furnish and install the continuous automatic coal-handling system for defendant at McMeekin Station. The contract was signed on defendant's behalf by Gilbert Associates "as agents for" defendant. In May 1957 Trans-Weigh Company, Wayne, Pennsylvania, subcontracted with Fairfield to provide, for less than $3,000, the design of a weighing and control system for the coal-handling apparatus and most of the components of this system, including a Leeds & Northrup electronic controller; to approve and warrant the compatibility of a Jeffrey Manufacturing Company feeder with motor driven rheostats being supplied directly to the job site by Fairfield; to furnish the services of its field engineer at $50 per day to install, adjust and calibrate the weighing equipment and to instruct defendant's personnel in the operation and use of the equipment.

MacMullen, a full-time employee of Trans-Weigh with considerable experience as a field engineer for that company, was assigned to the McMeekin Station job pursuant to Trans-Weigh's sub-contract with Fairfield. He flew from Philadelphia, Pennsylvania, on June 10, 1958, and reported at McMeekin Station the following day. After working for two days, while checking out the weighing equipment on the morning of June 13, 1958, assisted by one of defendant's employees, MacMullen discovered that a part of the apparatus, supplied by ...