Robinson v. Whitley Moving & Storage, Inc., 7710SC693

• Decision Date: 29 August 1978
• Docket Number: No. 7710SC693,7710SC693
• Citation: 246 S.E.2d 839,37 N.C.App. 638
• Court: North Carolina Court of Appeals
• Parties: Thomas L. ROBINSON v. WHITLEY MOVING AND STORAGE, INC., Western Electric Company, and Southern Bell Telephone and Telegraph Company.

Page 839

246 S.E.2d 839

37 N.C.App. 638

Thomas L. ROBINSON v. WHITLEY MOVING AND STORAGE, INC., Western Electric Company and Southern Bell Telephone and Telegraph Company.

No. 7710SC693.

Court of Appeals of North Carolina.

Aug. 29, 1978.

Judge Godwin granted the motion for a directed verdict. Plaintiff's motion for a new trial was denied. Plaintiff appealed.

Bailey, Dixon, Wooten, McDonald & Fountain by Wright T. Dixon, Jr., and Richard G. Chaney, Raleigh, for plaintiff-appellant.

Teague, Johnson, Patterson, Dilthey & Clay by I. Edward Johnson and Robert W. Kaylor, Raleigh, for defendant-appellee Western Elec. Co.

Robert L. Emanuel, Raleigh, for defendant-appellee Southern Bell Tel. & Tel. Co.

ERWIN, Judge.

The first question presented by the plaintiff for our determination is: Was it error for the trial court to grant the defendant's (Western Electric's) motion for a directed verdict, taking the evidence presented at the trial in the light most favorable to the plaintiff?

The plaintiff contends that under the terms of the contract as well as the actual course of performance, Whitley was a servant of Western Electric and not an independent contractor. We do not agree.

Where as here, the plaintiff presented his evidence and rested his case, defendant's motion for a directed verdict in its favor is the procedure prescribed by Rule 50(a) of the Rules of Civil Procedure, G.S. 1A-1, for testing the sufficiency of the plaintiff's evidence for submission to the jury. This is substantially the same question as that formerly presented by a motion for judgment of involuntary nonsuit under G.S. 1-183. Bowen v. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973), and Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971).

Plaintiff offered into evidence the contract between Western Electric and Whitley. The contract provided in part:

"2. RESPONSIBILITY. a. The Contractor shall have the sole and exclusive care, custody, and control of all goods, wares, merchandise and material from the time it is tendered to the Contractor, its agents or servants, until the same shall be delivered to and accepted by the Company or its associated companies in the Bell System as hereinafter defined or designated agents thereof.

4. LIABILITY. All personnel furnished by the Contractor pursuant to this contract shall for all purposes be considered as employees of the Contractor. The Contractor shall indemnify and save the Company and its associated companies in the Bell System harmless from any and all damage, loss, interest, expense, court costs, and counsel fees arising out of any and all claims that may be made against the Company or its associated companies in the Bell System by the Contractor's employees or any other persons for injuries to persons or damage to property resulting from acts or omissions of the Contractor or of the Contractor's employees or agents and shall, if so directed by the Company, undertake the settlement and defense of any such claim. . . ."

The plaintiff's evidence tended to show that he had no contact with anyone employed by Western Electric and that he received his instructions from Jerry Lee Brown, employee of Whitley. Southern Bell was not involved in the transporting of the equipment from Whitley's warehouse to the storage area in Southern Bell's building.

Our Supreme Court held in the case of Hayes v. Elon College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944), as follows:

"What, then are the elements which ordinarily earmark a contract as one creating the relationship of employer and independent contractor? The cited cases and the authorities generally give weight and emphasis, amongst others, to the following:

The person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time. " (Citations omitted.)

Here the terms of the agreement are in writing and are clearly set forth. What relationship between the parties was created by the contract? Whether it was that of master and servant or that of employer and independent contractor is a question of law. Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515 (1941).

Whitley was in the business of moving personal property for the general public, possessing the necessary skills, knowledge, and expertise to execute that purpose. The materials, including the bay that fell on the plaintiff, were under the sole control of Whitley. The work contracted to be performed was to be paid for by Western Electric according to the contract on the basis of pounds moved and equipment to be used. Whitley was free to use the necessary personnel to complete the work contracted for.

Western Electric had no duties under the contract to supervise Whitley nor did the plaintiff's other evidence reveal such duty.

From the record before us, we conclude that the contract between Whitley and Western Electric established the relationship of employer and independent contractor. See Brown v. Texas Co., 237 N.C. 738, 76 S.E.2d 45 (1953).

The plaintiff assigned error to the trial court's ruling excluding certain evidence of the plaintiff relating to Western Electric's duties to the plaintiff under the circumstances of this case. Plaintiff alleged that defendant Western Electric "knew or, in the exercise of due care, should have known that the defendant, Whitley, was using improper, inadequate and inherently dangerous work procedures in moving heavy and cumbersome equipment in a limited space area." In support of this allegation, plaintiff attempted to offer into evidence Exhibit No. 12, "consisting of three pages; being the 'Installation Engineering Handbook 30 of the Western Electric Company, Inc., Service Division,' " detailing the procedures for handling switching bays such as the one that fell on the plaintiff. The plaintiff contends: (1) that it was some evidence on the proper standard of care to be used in moving the bays; and (2) that it constituted evidence that Western Electric knew what the standard of care was at the same time that it knew what procedures Whitley was in fact using.

In general, safety codes not having the force and effect of law are not admissible. Hughes v. Vestal, 264 N.C. 500, 142 S.E.2d 361 (1965); Swaney v. Steel Co., 259 N.C. 531, 131 S.E.2d 601 (1963); and Sloan v. Light Co., 248 N.C. 125, 102 S.E.2d 822 (1958). We overrule this assignment of error.

We do not agree that the trial court erred in excluding the undated report of Manuel Betancourt, employee of Western Electric. The report appears to be a statement in part as to what happened at the time of the accident given to witness Betancourt by one J. C. Kornegay, who was not called as a witness during the course of the trial by plaintiff. The part the plaintiff considers as an admission against Western Electric reads:

"(I) had instructed the foreman of the crew, a Mr. Johnson, that at all times, he should have at least three men for moving frames. I had assigned N. S. Barbour to handle the first floor so as to instruct them where to place the frames, and the manner in which they should be handled. . . ."

In Hubbard v. R. R., 203 N.C. 675, 678, 166 S.E. 802, 804 (1932), Chief Justice Stacy stated the rule of evidence relevant here as follows:

"It is the rule with us that what an agent or employee says, relative to an act presently being done by him within the scope of his agency or employment, is admissible as a part of the Res gestae, and may be offered in evidence, either for or against the principal or employer, but what the agent or employee says afterwards, and merely narrative of a past occurrence, though his agency or employment may continue as to other matters, or generally, is only hearsay and is not competent as against the principal or employer." (Citations omitted.)

The plaintiff had the burden to establish the report in the manner required by our rules of evidence and our case law. The plaintiff did not carry his burden as to the date the report was written. To us, the statement is merely a narration of past events and is hearsay.

The plaintiff's last question relates to Judge McLelland's granting defendant Southern Bell's motion for summary judgment pursuant to Rule 56 of the Rules of Civil Procedure. The trial court found as required by Rule 56 that there was no genuine issue as to any material fact as between plaintiff and defendant Southern Bell and dismissed the action against Southern Bell. The record compels us to agree that the summary judgment entered by Judge McLelland was proper.

The standard for summary judgment is fixed by Rule 56(c):

"(T)he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Our Court held in Pridgen v. Hughes, 9 N.C.App. 635, 638, 177 S.E.2d 425, 427 (1970):

"While neither the federal rules nor the North Carolina rule excludes the use of the procedure in negligence actions, it is generally conceded that summary judgment will not usually be as feasible in negligence cases where the standard of the prudent man must be applied. Barron and Holtzoff, Federal Practice and Procedure (Wright Ed.) Vol. 3, § 1232.1; Gordon, The New Summary Judgment Rule in North Carolina, Supra. But summary judgment is proper where it appears that even if the facts as claimed by the plaintiff are proved, there can...