Tharpe v. G. E. Moore Co.
| Decision Date | 12 May 1970 |
| Docket Number | No. 19052,19052 |
| Parties | Mrs. Sivell THARPE, Appellant, v. G. E. MOORE COMPANY, Inc., and Federated Mutual Implement and HardwareInsurance Company, Respondents. |
| Court | South Carolina Supreme Court |
Charles & Charles, Pracht & Wyndham, Greenwood, for appellant.
Jefferies & Groves, Greenwood, for respondents.
In this workmen's compensation case, the sole issue is whether W. L. Tharpe, the claimant's intestate, was an employee of G. E. Moore Company, Inc. when he sustained a fatal, work-connected injury on October 7, 1966, or whether, instead, he was an independent contractor. The South Carolina Industrial Commission, affirming the hearing commissioner by a three to two decision, concluded that Tharpe was an employee. The circuit court reversed. The issue is jurisdictional, and the conclusion of the Commission is subject to judicial review even though supported by evidence. Marlow v. E. L. Jones & Son, Inc., 248 S.C. 568, 151 S.E.2d 747 (1966). The burden is upon appellant to convince us that the decision of the circuit court is against the preponderance of the evidence.
In determining whether an injured person was an employee or an independent contractor, '(t)he general test applied is that of control by the employer. It is not the actual control then exercised, but whether there exists the right and authority to control and direct the particular work or undertaking, as to the manner or means of its accomplishment. 'An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, without being subject to the control of his employer except as to the result of his work." Bates v. Legette, 239 S.C. 25, 34--35, 121 S.E.2d 289, 293 (1961).
Tharpe was accidentally killed while he and three workmen were installing a water line on property of Clinton Cotton Mills at Clinton, South Carolina. Moore had contracted with Clinton Mills to install this line for cost plus 10%, not to exceed $1,500.00. Tharpe commenced the work on October 3, 1966, by engagement of Moore and was killed on Friday of the same week.
Claimant offered testimony that after the accident G. E. Moore, president of the company, hereafter referred to as Moore, stated that Tharpe was employed on the job as foreman at a salary of $165.00 per week. There was some other slight evidence that his capacity was that of a foreman. On the other hand, Moore testified that he had by oral agreement sub-contracted the work to Tharpe, who had undertaken to install the line for cost plus 8%, not to exceed $1,500.00. The following written memorandum from Moore to Tharpe was received in evidence:
Moore further testified that he and Tharpe agreed upon $165.00 per week as the value of Tharpe's services on the job, to be included in the lump sum payment upon its completion.
Tharpe had formerly been employed by Britt Construction Company of Greenwood. Several months before his death, he quit his job and went into the construction business for himself. He had business cards and stationery printed, acquired equipment, hired workmen and sub-contracted several jobs. One of these was the installation of sewer lines at Laurens under a sub-contract with Moore for $7,300.00. This job had been substantially completed before October 1, 1966, and Tharpe moved his equipment and employees from the Laurens job to Clinton Cotton Mills when the commenced the installation of the water line there.
The circuit judge's conclusion that Tharpe was an independent contractor was bottomed upon a painstaking and convincing analysis of the evidence, which need not be repeated here. His conclusion that the parties intended that Tharpe should perform the work as an independent contractor is supported by the clear preponderance of the evidence. Indeed, the Commission made no finding inconsistent with this aspect of the decision. Its contrary conclusion as to Tharpe's status was based upon a finding that Tharpe was subject to Moore's supervision and control as to the manner or means of accomplishing the work.
We do not so construe the testimony. Certainly there is no direct evidence that Moore retained control of the means by which the work should be accomplished Nor is there evidence that he, or any other representative of the company, in fact exercised control. He visited the job site only once and...
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