Perley v. Ballenger Paving Co.
| Decision Date | 25 February 1948 |
| Docket Number | 92. |
| Citation | 46 S.E.2d 298,228 N.C. 479 |
| Parties | PERLEY et al. v. BALLENGER PAVING CO. et al. |
| Court | North Carolina Supreme Court |
Claim for compensation under the Workmen's Compensation Act for the death of Allen P. Perley, III. At the hearing before the Industrial Commission the plaintiffs' evidence tended to show that on the morning of October 17, 1946, the decedent, while driving a truck loaded with materials to the defendant Paving Company's concrete mixer, between Black Mountain and Swannanoa, was struck at a railroad crossing by a train of the Southern Railway and instantly killed. The defendant Paving Company was engaged in laying base for highway paving and was using a concrete mixer which was moved as the work progressed. The materials of sand an gravel were hauled from the bins of the Grovestone Sand Company by trucks to the mixer. The distance varied, but at this time was approximately one mile. The defendant used a number of trucks of its own operated by drivers whom it employed at a wage of $1 per hour. Needing additional trucks to expedite the work, the defendant contracted with the decedent, who was a licensed contract hauler, to use his truck in hauling this material and agreed to pay him $1 per batch delivered to the mixer (a batch being the amount of material sufficient for one filling of the mixer). Similarly, the trucks of several other contract haulers were also engaged. The decedent's truck was no arranged that he could haul two batches at the time, making $2 per load as his compensation. He began hauling October 10 and during the last 4 days before his death on the 17th hauled 76 batches. In hauling the material from the bins to the mixer it was necessary to cross the railroad at grade. Defendant's foreman, offered as a witness by the plaintiffs, testified he hired Perley's truck for this work and did not know of his own knowledge whether Perley drove his truck or not, as the check was on the number of batches the numbered truck delivered, but it seems Perley during this work did drive his own truck. Perley had previously used his truck in hauling sand for the Grovestone people to this job. The defendant's foreman testified he did not give Perley any instructions (as to the manner of hauling) as "it was understood he would work on same basis as other trucks hired." If Perley had not been familiar with the work he would have given him instructions, which would have been that he take his truck to the sand and gravel bins first, and load his truck, and from there to the cement bin (there were two bins to go under) and from there to the mixer. The trucks were loaded by defendant's employees and unloaded by dumping in the mixer. The mixer started up at 7 A.M. And all trucks were supposed to be loaded and at the mixer by that time. Trucks hauled continually until about 4:30 P.M. In case of rain or breakdown of the mixer the trucks would be knocked off by the mixer foreman. Truck drivers expected to be told by mixer foreman when to quit. This applied to trucks owned by defendant and to those hired, like Perley's.
The defendant's foreman further testified that he and the superintendent selected the road the trucks would take from the Grovestone plant to the mixer and back. All the trucks went the same route. Before putting the trucks on a new route they selected the best route from existing possibilities made repairs and tried to call all the drivers together and to give them information and instructions as to the new route to take. This was to prevent confusion. The route followed by decedent the day of his death had been selected after study of available routes. This witness further testified that needing more trucks he had asked Perley if he wanted to put his truck to work. Perley said he did, as he wanted to keep his truck busy, and he put a batch gate in his truck. There was nothing said about who was to drive it. "I had no control over a man that owned his own individual truck." Witness had the right to lay off or discharge those who hauled, had the right to pay them off when no longer needed. Defendant's employees determined the mixture and weight but not the number of batches the truck owner could haul. The type of mixture was determined by the State Highway Department. A man driving his own truck could stop and work on his truck; work half a day and fall out. "We wanted a man to work all he could but could not force him to, not like an employee, hire a man to drive his truck." If a man "didn't get there until 11 o'clock you wouldn't want to run him off when he did get there." If one of defendant's trucks was disabled would expect the driver to be there and be put to other work temporarily. Defendant's drivers were required to work regular hours, but as to Perley nothing was said about the hours required. He could haul two or three hours and then go haul for somebody else and then come back. Those who operated their own trucks were paid by the batch and they furnished their own gas and oil. If mixer broke down we endeavored to pay the truck owner $1 per hour while waiting to dump the truck in the mixer. Defendant had right to terminate Perley's hauling contract if unsatisfactory. Some of the other contract haulers on the job hired drivers. Defendant...
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