Pearson v. Peerless Flooring Co.

• Decision Date: 10 January 1958
• Docket Number: No. 600,600
• Citation: 247 N.C. 434,101 S.E.2d 301
• Court: North Carolina Supreme Court
• Parties: Mrs. Elizabeth PEARSON, Widow of Carl A. Pearson, Deceased (Employee), v. PEERLESS FLOORING COMPANY (Employer), Textile Insurance Company (Carrier); Moore Dry Kiln Company (Employer), and Standard Accident Insurance Company (Carrier).

Page 301

101 S.E.2d 301

247 N.C. 434

Mrs. Elizabeth PEARSON, Widow of Carl A. Pearson, Deceased (Employee), v. PEERLESS FLOORING COMPANY (Employer), Textile Insurance

Company (Carrier); Moore Dry Kiln Company

(Employer), and Standard Accident

Insurance Company (Carrier).

No. 600

Supreme Court of North Carolina.

Jan. 10, 1958

Sapp & Sapp, Greensboro, for defendants Peerless Flooring Co. and Textile Ins. Co., appellants.

King, Adams, Kleemeier & Hagan, Greensboro, for plaintiff, appellee.

Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendants Moore Dry Kiln Co., and Standard Acc. Ins. Co., appellees.

BOBBITT, Justice.

The judgment as to Moore and its carrier is final. Plaintiff did not appeal. Cf. Willingham v. Bryan Rock & Sand Co., 240 N.C. 281, 82 S.E.2d 68. Moreover, plaintiff, in his brief, says: 'There is no evidence which could possibly support the conclusion that Pearson was an employee of Moore.'

This appeal relates solely to plaintiff's claim as against Peerless and its carrier. If Pearson was the employee of Peerless, as plaintiff contends, the death was compensable. If Pearson was not the employee of Peerless, but an independent contractor, as appellants contend, the Industrial Commission had no jurisdiction and the proceeding should be dismissed. Admittedly, Peerless and its employees were subject to the Act. The crucial question is whether the employer-employee relationship existed as between Peerless and Pearson.

Appellants insist that Judge Rousseau should have, but did not, make independent findings of fact relevant to the controverted jurisdictional question, citing Hart v. Thomasville Motors, 244 N.C. 84, 92 S.E.2d 673, and Aylor v. Barnes, 242 N.C. 223, 87 S.E. 2d 269, which cite, inter alia, Aycock v. Cooper, 202 N.C. 500, 163 S.E. 569, and Francis v. Carolina Wood Turning Co., 204 N.C. 701, 169 S.E. 654. These cases support the view that when a defendant-employer challenges the jurisdiction of the Industrial Commission, 'the findings of fact made by the Commission, on which its jurisdiction is dependent, are not conclusive on the superior court, and * * * said court has both the power and the duty, on the appeal of either party to the proceeding, to consider all the evidence in the record, and find therefrom the jurisdictional facts, without regard to the finding of such facts by the commission.' Aycock v. Cooper, supra [202 N.C. 500, 163 S.E. 571]. It is noted that Hart v. Thomasville Motors, supra, and Francis v. Carolina Wood Turning Co., supra, relate to whether the injured party was an employee; that Aylor v. Barnes, supra, relates to whether the injured employee, within the meaning of G.S. § 97-36, was a resident of this State and entitled to compensation on account of an accident in Virginia; and that Aycock v. Cooper, supra, relates to whether the employer had less than five employees regularly employed in his business within this State.

Yet, in a series of cases where the controverted jurisdictional question was whether the injured party was an employee or an independent contractor, this Court appears to have based decision on the rule applicable to non-jurisdictional questions, which, as stated in Lassiter v. Carolina Telephone & Telegraph Co., 215 N.C. 227, 230, 1 S.E.2d 542, 543, is as follows: 'It is established in this jurisdiction that the findings of fact made by the Industrial Commission, if supported by competent evidence, are conclusive on appeal and not subject to review by the Superior Court or this Court, although this Court may have reached a different conclusion if it had been the fact finding body.' See Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425; Cooper v. Colonial Ice Co., 230 N.C. 43, 51 S.E.2d 889; Creighton v. Snipes, 227 N.C. 90, 40 S.E.2d 612; Graham v. Wall, 220 N.C. 84, 16 S.E.2d 691; Cloninger v. Ambrosia Cake Bakery 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 v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730, and Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137, and Beach v. McLean, 219 N.C. 521, 14 S.E. 2d 515, are reviewable by the court as questions of law.

In Beach v. McLean, supra, Barnhill, J. (later C. J.), in an analysis of the extent to which the courts were bound by the Commission's finding and conclusion that the injured party was an employee of the corporate defendant, says [219 N.C. 521, 14 S.E.2d 518]: '(1) What were the terms of the agreement--that is, what was the contract between the parties; and (2) what relationship between the parties was created by the contract--was it that of master and servant or that of employer and independent contractor? The first involves a question of fact and the second is a question of law.' Again: 'The commission having found the facts in respect to the terms and conditions upon which McLean undertook the work of dismantling and salvaging the machinery purchased by defendant from Superior Yarn Mills, it settled the question of fact involved in the 'finding' or conclusion as to the nature and extent of the contract. Hence, the element of fact involved in the conclusion is settled. Both the court below and this Court are bound thereby. The only question presented is the legal status of McLean under the contract. The commission's conclusion in this respect is reviewable.' (Here the injured party was employed by McLean; and the crucial question was whether McLean was an independent contractor or an agent of the corporate defendant.)

The cases cited above (except Lassiter v. Carolina Telephone & Telegraph Co.) turn on whether plaintiff was an employee; but none prior to Aylor v. Barnes, supra, cites either Aycock v. Cooper, supra, or Francis v. Carolina Wood Turning Co., supra. While the rule announced in those cases was not applied in the intermediate cases, apparently there was no express reconsideration or discussion of its soundness. Even so, in the case before us, we need not undertake to reconcile or to resolve the apparent conflict in the cited decisions.

The record, fairly interpreted, does not show that Judge Rousseau failed to consider the evidence and make his own findings of fact therefrom. Indeed, the stronger inference is that he did so. Certainly, if he considered the findings of fact of the Commission correct, and his judgment so states, the rule contended for by appellants would not require a mere rephrasing of essentially the same factual findings in order to demonstrate that the findings made by him were his own rather than an approval of the Commission's findings because supported by some competent evidence.

The record shows that Judge Rousseau, after a full review of the evidence, found not only that the findings of fact of the Commission were supported by competent evidence but that they were correct. He adopted the findings of fact made by the Commission as his own 'as fully as if set forth verbatim in this judgment.' The phraseology of the judgment, quoted above, takes on special significance when considered in the light of the fact that Peerless and its carrier, in their 'proposed findings of fact, conclusions of law, and judgment' had specifically brought to Judge Rousseau's attention that it was 'the duty of this Court to find the facts from the evidence herein' and to base the court's legal conclusions on such findings.

Unquestionably, the record discloses that the findings of fact, made by the Commission and also by Judge Rousseau, are supported by ample competent evidence. The only remaining question is whether the facts so established support the legal conclusion that Pearson was an employee rather than an independent contractor. Smith v. Southern Waste Paper Co., supra.

In Hayes v. Board of Trustees of Elon College, supra, Barnhill, J. (later C. J.), citing many cases, discusses the distinction between an 'employee' and an 'independent contractor.' Too, he sets forth a number of elements which ordinarily tend to identify either the employee relationship or the independent contractor relationship. He adds [224 N.C. 11, 29 S. E.2d 140]: 'The presence of no...