McCraw v. Calvine Mills

Decision Date02 March 1951
Docket NumberNo. 535,535
Citation64 S.E.2d 658,233 N.C. 524
PartiesMcCRAW et al. v CALVINE MILLS, Inc. et al
CourtNorth Carolina Supreme Court

Helms & Mulliss, James B. McMillan, Charlotte, for plaintiffs-appellants.

Taliaferro, Clarkson & Grier, Charlotte, for defendant-appellant Homer Gaddy.

Smathers & Carpenter, Charlotte, for Calvine Mills, Inc., and Lumbermens Mut. Cas. Co., defendants-appellees.

DEVIN, Justice.

The question presented is whether under the evidence shown by the record Joseph E. McCraw, the decedent, at the time of his death by accident, was an employee of Calvine Mills, Inc., or was an employee of defendants Gaddy while the latter were engaged in work for the corporate defendant under an independent contract. The Industrial Commission found he was an employee of defendant Mills, Inc., while the Judge of the Superior Court adopted the contrary view, holding that decedent was an employee of defendants Gaddy as independent contractors, and not an employee of defendant Mills, Inc.

The defendant of independent contractor and the distinction of the drawn between the relationship of independent contractor and that of employee, in cases arising under the Workmen's Compensation Act, G.S. § 97-1 et seq., have been frequently stated by this Court. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59, S.E.2d 425; Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298; Brown v. Bottoms Truck Lines, 227 N.C. 299, 42 S.E.2d 71; Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730; Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137; Beach v. McLean 219 N.C. 521, 14 S.E.2d 515; Gadsden v. Craft & Co., 173 N.C. 418, 92 S.E. 174, 20 A.L.R. 662; Denny v. Burlington, 155 N.C. 33, 70 S.E. 1085. In its simplest form an independent contractor may be said to be one who exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work. Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298, supra. When one undertakes to do a specific job under contract and the manner of doing it, including employment, payment and control of persons working with or under him, is left entirely to him, he will be regarded as an independent contractor unless the person for whom the work is being done has retained the right to exercise control in respect to the manner in which the work is to be executed. Denny v. Burlington, 155 N.C. 33, 70 S.E. 1085. The test is whether the party for whom the work is being done has the right to control the worker with respect to the manner or method of doing the work, as distinguished from the right merely to require certain definite results conforming to the contract. If the employer has right of control, it is immaterial whether he actually exercises it. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425.

As the findings of fact made by the Industrial Commission must be held conclusive on appeal to the Superior Court and in this Court, if supported by competent evidence, Vause v. Vause Farm Equipment Co., 233 N.C. 88, 63 S.E.2d 173, a careful examination and analysis of the testimony presented to the Industrial Commission is in order. The evidence shows these material facts: The defendant Calvine Mills, Inc., is and was at the times referred to engaged in the manufacture of cloth. Desiring to have the mill building painted, it accepted the written proposal of S.J. Gaddy to do this work on the terms set out in the following letter: "For the sum of ten thousand and five hundred dollars ($10,500) we propose to paint the Calvine Mill interior and exterior in accordance with the specifications drawn up by the DuPont Paint Company. You are to furnish all materials, drop cloths, and rigging. We are to furnish all brushes and skilled labor. As work progresses you are to advance weekly payroll. We will assume all responsibility and do A-1 job. Thanking you for this opportunity of quoting you and hoping to be awarded this work. (Signed) S.J. Gaddy."

The defendant Mills, Inc., was to make advancements on the contract to enable defendants Gaddy to meet their payrolls. The mill being in operation, it ws understood that the painting on the inside of the building should be done at such times and places as would not interfere with the operation of the mill, and that this would be done on Saturdays and Sundays when the mill was usually closed. S.J. Gaddy and his son Homer Gaddy, who became interested with him, carried out this painting contract, employing a number of painters ranging from four on some days to twenty or more on weekends. Homer Gaddy kept the time of the employed painters, and each week obtained from defendant Mills, Inc., in a lump sum an amount sufficient to pay the wages of the workmen including an amount for the two Gaddys which they charged against their anticipated profits on the contract.

The decedent McGraw was one of the painters on the job, employed by and carried on Gaddys' payroll, and had been so employed four or five weeks before his death. S.J. Gaddy had been for many years a painting contractor and painter but had retired from active work until he made this contract. Homer Gaddy had been engaged for a number of years in the painting business with his son, brother and cousin.

S.J. Gaddy testified that he made the contract to paint the mill according to the specifications for $10,500, and to furnish all the labor, brushes and ladders; that he and Homer Gaddy did the job according to specifications in a satisfactory manner and were paid the contract price. "He (the mill superintendent) did not give us any orders or instructions. * * There was no charge in the specifications except when we got through the superintendent had an additional room and asked us about it. That was additional work and we got paid for it." On request and as an accommodation a certain pipe in the mill was painted red. "Nobody at the mill told us how to hire or fire; they never told us how much to pay anybody; they never told us who to work and how not to work. My son and I exercised all the control over employees. Nobody else controlled them in any way. I did not recognize any right on the part of the mill to give any different orders or instruction other than that contained in the letter, other than the specifications we had to work by. Other than that I did not recognize any right on the part of the mill to give me further orders."

Homer Gaddy testified for the plaintiffs that he participated with S.J. Gaddy in making the estimates for the work. This was based on the plans and specifications furnished by defendant Mills, Inc., and it was to be done in accordance with specifications drawn up by the DuPont Paint Company. He said the mill was to furnish the paint and all materials including drop cloth and rigging, while he and S.J. Gaddy were to furnish skilled labor and all brushes and ladders....

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    • United States
    • United States State Supreme Court of North Carolina
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    ...to his employer except as to the result of his work. Cooper v. Publishing Co., 258 N.C. 578, 129 S.E.2d 107 (1963); McCraw v. Mills, Inc., 233 N.C. 524, 64 S.E.2d 658 (1951). Where the party for whom the work is being done retains the right to control and direct the manner in which the deta......
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    ...and Defendant had an employer-employee relationship at the time of Plaintiff's blasting-related injuries. See McCraw v. Mills, Inc. , 233 N.C. 524, 530, 64 S.E.2d 658, 662 (1951) (holding employee of independent contractor was not an employee of party that hired the independent contractor).......
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    ...that Waccamaw was a statutory employer, the court's opinion did not mention section 97-19. The facts of McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658 (1951) were essentially the same as those in Scott — there was no allegation of a principal contractor-subcontractor relationshi......
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    ...Co., 218 N.C. 26, 9 S.E.2d 615. Whether the facts found by the Commission are supported by competent evidence, McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658, and whether the facts found by the Commission support the legal conclusion that the injured party was an employee, Smith......
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