Watkins v. Murrow

• Decision Date: 20 January 1961
• Docket Number: No. 603,603
• Citation: 253 N.C. 652,118 S.E.2d 5
• Parties: Louise C. WATKINS, Guardian for Jerry Mitchell Watkins, Incompetent, v. Clyde MURROW, d/b/a Transfer and Rental Company, Textile Insurance Company, Byrd Motor Lines, Inc., and lowa Mutual Insurance Company.
• Court: North Carolina Supreme Court

Page 5

118 S.E.2d 5

253 N.C. 652

Louise C. WATKINS, Guardian for Jerry Mitchell Watkins, Incompetent, v. Clyde MURROW, d/b/a Transfer and Rental Company, Textile

Insurance Company, Byrd Motor Lines, Inc., and

lowa Mutual Insurance Company.

No. 603

Supreme Court of North Carolina.

Jan. 20, 1961

Walser & Brinkley, Lexington, for plaintiff.

Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendants-appellants.

Jordan, Wright, Henson & Nichols, Greensboro, for defendants-appellees.

RODMAN, Justice.

We have read with care the testimony and the exhibits. We find no factual conflict in the evidence. The facts found by the Commission are amply supported by the evidence. The parties disagree as to the conclusion drawn from and the legal effect of the undisputed evidence. The facts found by the Commission may be summarized as follows: Byrd was a duly franchised interstate motor carrier of furniture from designated points in North Carolina. Murrow had no right or authority to transport freight in interstate commerce in his own name. Claimant was hired by Murrow in December 1956 as a truck driver to drive Murrow's trucks in the transportation of goods in interstate commerce as permitted by Byrd's franchise. Prior to 1 January 1957 Murrow hauled for Byrd in interstate commerce. On that date a written agreement was executed in which Byrd '(a) Agrees that during the term of this lease, the said vehicle(s) shall be solely and exclusively under the direction and control of the Lessee who shall assume full common carrier responsibility (1) for loss or damage to cargo transported in such motor vehicle and (2) for the operation of such vehicle.' In addition to the foregoing provision quoted by the Commission, the agreement designating Murrow as lessor provides: 'Lessor Hereby * * * (b) Agrees that during the term of this agreement, the Lessor shall fully maintain, service and keep the vehicle(s) above described in good repair, provide all gas, oil, tires and other equipment necessary and pay driver'(s) salary * * * (e) Agrees to indemnify Lessee against (1) any loss resulting from the injury or death of such driver(s) and (2) any loss or damage resulting from the negligence, incompetence or dishonesty of such driver(s) * * *. ' Textile insured Murrow's liability under the Workmen's Compensation Act, G.S. § 97-1 et seq., from 14 May 1956 to 14 May 1957. Before Textile issued its policy to Murrow, Murrow's employees, including claimant and other drivers hired by Murrow, were protected by compensation insurance carried by Byrd with Iowa. Prior to 14 May 1956, Murrow reimbursed Byrd for the premiums paid for insurance on the drivers hired by Murrow. Subsequent to that date, Murrow, by agreement with Byrd, paid these premiums directly to the insurance carrier selected by him.

When Textile issued its compensation policy to Murrow, it collected premiums based on the wages paid Murrow's drivers, including the wages paid to claimant for hauling under Byrd's franchise.

Textile furnished Byrd a certificate that Murrow was insured by it under the Workmen's Compensation Act. This was required by Byrd in his negotiations with Murrow and was an effort to protect Byrd from liability for injuries to drivers of Murrow's trucks. Prior to the time Textile issued its policy to Murrow and during the life of the policy, Textile was aware that Murrow was operating at least in part under the Interstate Commerce Commission rights of Byrd.

Murrow's terminal in High Point was the point of origin and return on all trips which claimant made in interstate commerce. Upon returning from a trip, claimant would account to Murrow for freight collected by claimant in the form of cash and checks. Murrow made an accounting to Byrd at the end of each week. Murrow solicited business in Byrd's name. The goods to be transported by Murrow for Byrd would be collected at Murrow's terminal, then loaded in the truck. Murrow's office typed and prepared statements, planned the trip, designated the route, consignees, and the several destinations. Byrd never gave instructions to the drivers of Murrow's trucks and never hired or discharged any of Murrow's drivers. He did not know their names or identities. Murrow made social security and income tax deductions from claimant's pay.

On 7 March 1957 claimant and his brother, driving a tractor-trailer owned by Murrow, left Murrow's terminal in High Point. They were hauling a load of furniture under and pursuant to the contract agreement entered into by Byrd and Murrow effective 1 January 1957. The vehicle carried a sign showing Byrd's interstate certificate number. After making deliveries of furniture in Ocala and Gainesville, Florida, claimant and his brother proceeded towards Jacksonville. Before arrival there, the exhaust pipe on the vehicle came loose from the engine manifold. They undertook to make repairs but were unable to make a tight connection because the exhaust pipe and gasket were burned. They arrived at Ferguson's Furniture Company, about seven miles from Jacksonville, the afternoon of 8 March after the store had closed. They parked the trailer on Ferguson's lot, adjacent to his loading platform. After supper they drove to Jacksonville where they worked about two hours attempting to repair the exhaust. They were not able to make a tight connection. After driving around Jacksonville to locate other stores at which they expected to make deliveries the following day, they returned to Ferguson's lot about midnight and parked the tractor beside the trailer. Claimant's brother got into the trailer, used quilts to keep warm, and immediately went to sleep. Claimant got into the cab of the tractor and ran the motor to heat the cab. The windows and doors were closed except for a small opening in the right window. There were openings in the floor board of the cab around the clutch, brake, and accelerator sufficient to permit the entry of carbon monoxide in gaseous form, which is slightly lighter than air. About 1:00 a. m. on 9 March claimant was observed in the cab, at which time the motor was running and white fumes coming from the motor could be seen under the tractor. About 8:00 a. m. on 9 March, claimant's brother was awakened by an employee of Ferguson. He observed claimant sitting slumped over the steering wheel. He called but was unable to arouse claimant. When he succeeded in opening the door, he found claimant unconscious. The motor of the tractor was not running. The ignition switch was in the on position, and the heater fan was running. Continued efforts to awaken and revive claimant failed. About noon he was taken to St. Vincent's Hospital, unconscious and in shock. There was no evidence of traumatic injury. A diagnosis of carbon monoxide poisoning was made two or three days after 9 March. Claimant remained in St. Vincent's Hospital until 30 May 1957. He was then taken to North Carolina Baptist Hospital in Winston-Salem where he remained until 1 May 1958, when he was transferred to Maple Grove Rest Home at Walkertown, where he is still a patient. Some slight improvement was noted while in the hospital. He regained some ability to speak, but not in an intelligent manner. His condition has remained substantially the same since removal to the rest home. Claimant had sustained an injury to the brain resulting in loss of mental capacity and paralysis. The disability is total and permanent.

Claimant and other drivers of Murrow's trucks customarily slept in the cab of the tractor or in the trailer at night. This fact was known by Murrow and could have been ascertained by Byrd upon inquiry. Claimant's sleeping in Murrow's tractor on 8 and 9 March 1957 served to protect the tractor, the trailer, the contents of the trailer, and would have enabled claimant to be available to unload the trailer immediately upon Ferguson's being opened on 9 March. Claimant was responsible for the care and safekeeping of the vehicle and its contents at all times when away from High Point.

In addition to the facts found as summarized above, the Commission found: 'At all times between December 10, 1956, to and including March 9, 1957, when operating one of Murrow's trucks, claimant was an employee of Murrow and Byrd.' 'On March 9, 1957, claimant received an injury by accident arising out of and in the course of his employment with the defendant employers Murrow and Byrd when he breathed carbon monoxide gas.'

Murrow and Textile assign as error the factual conclusion made by the Commission and affirmed by Judge Preyer that claimant was an employee of Murrow. They contend the provision in the lease which gave Byrd the exclusive direction and control of the vehicle operated by claimant made Byrd the sole employer, relieving Murrow of liability for claimant's injury.

The answer to this contention is twofold: First, the liability or nonliability of Byrd to claimant does not necessarily determine Murrow's relationship to claimant and the resulting liability or nonliability for the injuries sustained. As said by Bobbitt, J.: 'The hybrid nature of these trip-lease agreements has caused much litigation. In reality, contrary to the Biblical admonition, a driver, employed and furnished by the lessor, must serve two masters.' State ex rel. Employment Security Comm. v. Hennis Freight Lines, 248 N.C. 496, 103 S.E.2d 829, 833. Second, a mere contractual declaration is not determinative of the relationship and the rights of the parties. A contract declaring one an independent contractor free from control and direction by the owner does not in fact establish that relationship. There must be further evidence to show that the work was in fact performed pursuant to that contract. If not so performed, a contractual provision vesting or forbidding the owner to exercise control is immaterial. Young v. Fosburg Lumber Co., 147 N.C. 26, 60 S.E. 654, 16 L.R.A.,N.S., 255; Leonard v. Tatum & Dalton Transfer Co., 218 N.C. 667, 12 S.E.2d 729.

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