Weaver v. Bennett, 387

• Citation: 129 S.E.2d 610,259 N.C. 16
• Decision Date: 06 March 1963
• Docket Number: No. 387,387
• Parties: Mary Sawyer WEAVER, Administratrix of the Estate of Jackle Weaver v. R. J. BENNETT and Weldon O. Parrish.
• Court: North Carolina Supreme Court

Page 610

129 S.E.2d 610

259 N.C. 16

Mary Sawyer WEAVER, Administratrix of the Estate of Jackle Weaver v. R. J. BENNETT and Weldon O. Parrish.

No. 387

Supreme Court of North Carolina.

March 6, 1963

Deal, Hutchins & Minor and W. Scott Buck, Winston-Salem, for plaintiff appellant.

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, Winston-Salem, for defendant appellees.

BOBBITT, Justice.

Careful consideration impels the conclusion that the evidence, when considered in the light most favorable to plaintiff, is sufficient to require submission for jury determination of issues as to the alleged negligence of Parrish and as to the alleged contributory negligence of Weaver. Having reached this conclusion, we deem it appropriate to refrain from further discussion of the evidence (relevant to said issues) presently before us. Tucker v. Moorefield, 250 N.C. 340, 342, 108 S.E.2d 637, and cases cited.

Even so, defendants contend that, under the provisions of G.S. § 97-9 and G.S. § 97-10, plaintiff's exclusive remedy is against her intestate's employer and its insurance carrier for compensation as provided in our Workmen's Compensation Act and Parrish is immune from suit.

In this jurisdiction, an employee subject to the provisions of our Workmen's Compensation Act, 'whose injury arose out of and in the course of his employment, cannot maintain an action at common law against his coemployee whose negligence caused the injury. ' Warner v. Leder, 234 N.C. 727, 732, 69 S.E.2d 6, 9; Bass v. Ingold, 232 N.C. 295, 60 S.E.2d 114; Essick v. Lexington, 232 N.C. 200, 60 S.E.2d 106. In Warner, the factual situation in each pertinent prior decision is discussed.

In Warner, this Court, in opinion by Denny, J. (now C.J.), said: 'We hold that an officer or agent of a corporation who is acting within the scope of his authority for and on behalf of the corporation, and whose acts are such as to render the corporation liable therefor, is among those conducting the business of the corporation, within the purview of G.S. § 97-9, and entitled to the immunity it gives; (citations) and that the provision in G.S. § 97-10 which gives the injured employee or his personal representative 'a right to recover damages for such injury, loss of service, or death from any person other than the employer,' means any other person or party who is a stranger to the employment but whose negligence contributed to the injury. And we further hold that such provision does not authorize the injured employee to maintain an action at common law against those conducting the business of the employer whose negligence caused the injury. To hold otherwise would, in a large measure, defeat the very purposes for which our Workmen's Compensation Act was enacted. Instead of transferring from the worker to the industry, or business in which he is employed, and ultimately to the consuming public, a greater proportion of the economic loss due to accidents sustained by him arising out of and in the course of his employment, we would, under the provisions for subrogation contained in our Workmen's Compensation Act, G.S. § 97-10, transfer this burden to those conducting the business of the employer to the extent of their solvency. The legislature never intended that officers, agents, and employees conducting the business of the employer, should so underwrite this economic loss.'

Under our Workmen's Compensation Act, as held in the cited decisions, where an employee's injury or death is compensable the sole remedy against the employer and 'those conducting his business' (G.S. § 97-9) is that provided by its terms. As noted in Warner, in jurisdictions where the Workmen's Compensation Act does not contain a similar immunity clause, fellow workmen are generally treated as third parties within the meaning of the Act. See 30 N.C.L.R. 474. Thus, in Nepstad v. Lambert, 235 Minn. 1, 50 N.W.2d 614, 624, discussed below, this statement appears: 'It is clear under the Wisconsin law that if one coemploye negligently injures his fellow employe it is no defense in a suit against him to assert that both were employed under one master.'

The rule stated in Warner has been applied and recognized in subsequent decisions: McNair v. Ward, 240 N.C. 330, 82 S.E.2d 85; Johnson v. Catlett, 246 N.C. 341, 98 S.E.2d 458; Wesley v. Lea, 252 N.C. 540, 114 S.E.2d 350; Jackson v. Bobbitt, 253 N. C. 670, 117 S.E.2d 806. In each decision based on the rule stated in Warner, the person who was conducting the employer's business and whose negligence caused the injury was an officer or otherwise in the general employment of the employer of the injured person.

This question is presented: Does the evidence, when considered in the light most favorable to plaintiff, disclose affirmatively that Parrish, at the time Weaver was fatally injured, was conducting the business of Reynolds within the meaning of G.S. § 97-9 and therefore, under the provisions of our Workmen's Compensation Act, immune from suit? The alleged liability of Bennett, if any, rests solely on the doctrine of respondeat superior.

It is noted: The record contains no evidence or stipulation that Weaver and Reynolds on October 17, 1958, were subject to and bound by the provisions of our Workmen's Compensation Act and that plaintiff has been paid full compensation in accordance with its terms. However, since these facts underlie contentions advanced by both plaintiff and defendants in their briefs, our further discussion assumes the existence of such facts.

Pertinent evidential facts are as follows:

The Unit Backhoe was one of some twenty pieces of equipment covered by a 'purchase order' dated June 18, 1958, from Reynolds to Bennett. By its terms, Bennett agreed to furnish the equipment listed therein at locations in Forsyth and Stokes Counties specified by Reynolds during the period of one year beginning July 1, 1958. Bennett agreed to furnish a competent operator and all fuel for each piece of equipment. Bennett also agreed to keep in force at all times '(s)ufficient public liability and property damage insurance to protect the R. J. Reynolds Tobacco Company against any and all claims for damage in connection with use of said equipment * * *' Reynolds agreed to pay a specified amount per hour for each piece of equipment, the operator and the fuel. For the period October 16-October 22, 1958, the amount paid by Reynolds to Bennett under this contract exceeded $6,000.00.

The rental of such equipment upon such terms was in the regular course of Bennett's business. The equipment was operated over an extended period on the premises of Reynolds and for the benefit of Reynolds.

The Unit Backhoe was a complicated machine. Operation thereof required skill and experience. Its two clutches and seven levers required '* * * a certain rhythm, like playing a piano, to run a unit backhoe. ' Parrish operated the Unit Backhoe and did the field maintenance. He was a competent operator of long experience.

Parrish had worked for Bennett for nearly twenty years. Bennett paid him by the week, after first deducting taxes, insurance, and social security. Bennett gave him his W-2 form on taxes withheld by Bennett. Reynolds never paid Parrish. Parrish turned in his time to Bennett's foreman on the Brook Cove project and not to Reynolds. When Parrish wanted time off, Bennett (not Reynolds) granted such permission. He was hired by Bennett and could be fired by Bennett. Bennett's foreman checked Parrish daily and Bennett himself came around at regular intervals. Bennett '* * * wasn't interested in the work, it was the machine, more or less.'

Defendants, in supplemental brief, cite and stress our decision in Peterson v. Trucking Co., 248 N.C. 439, 103 S.E.2d 479. This is in the line of decisions in which this Court has held that an interstate carrier, which exercises its franchise rights by transporting freight in leased equipment under leases providing that such equipment during the term of the lease shall be solely and exclusively under the direction and control of the lessee, is liable in damages for injuries to third parties caused by the negligent operation of such equipment in the prosecution of such carrier's business. Wood v. Miller, 226 N.C. 567, 39 S.E.2d 608; Jocie Motor Lines v. Johnson, 231 N.C. 367, 57 S.E.2d 388; Eckard v. Johnson, 235 N.C. 538, 70 S.E.2d 488; Hill v. Freight Carriers Corp., 235 N.C. 705, 71 S.E.2d 133; Newsome v. Surratt, 237 N.C. 297, 74 S.E.2d 732; McGill v. Bison Fast Freight, 245 N.C. 469, 96 S.E.2d 438.

And, with specific reference to the Workmen's Compensation Act, this Court has held: (1) The dependents of a lessor-operator, who was transporting freight for the lessee, an interstate carrier, under authority of the lessee's I.C.C. franchise and license plates, were entitled to recover death benefit compensation from the lessee. Brown v. Truck Lines, 227 N.C. 299, 42 S.E.2d 71. (2) The dependents of the lessor's driver, whose death occurred while operating the leased equipment under like circumstances, were entitled to death benefit compensation from the lessee. Roth v. McCord, 232 N.C. 678, 62 S.E.2d 64. (3) The dependents of an assistant driver, who was fatally injured when the leased equipment was being operated by the owner-lessor under like circumstances, were entitled to death benefit compensation from the lessee. McGill v. Bison Fast Freight, supra.

Reference has been made to the hybrid nature of these lease agreements. Employment Security Comm. v. Freight Lines, 248 N.C. 496, 501, 103 S.E.2d 829; Watkins v. Murrow, 253 N.C. 652, 657, 118 S.E.2d 5.

The bases for the decisions relating to these lease agreements are well stated by Barnhill, J. (later C. J.), in Roth v. McCord, supra, as follows:

'(1) Roth, at the time of his injury and death, was operating a vehicle being used by the Motor Lines to haul freight in the course of its business as a common carrier under franchise from the Interstate Commerce Commission....