Youngblood v. North State Ford Truck Sales

Decision Date03 February 1988
Docket NumberNo. 517A87,517A87
Citation321 N.C. 380,364 S.E.2d 433
CourtNorth Carolina Supreme Court
PartiesCharles YOUNGBLOOD v. NORTH STATE FORD TRUCK SALES and Liberty Mutual Insurance Company.

Teague, Campbell, Dennis & Gorham by George W. Dennis, III and Linda Stephens, Raleigh, for plaintiff-appellee.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Robert W. Sumner, Raleigh, for defendants-appellants.

MARTIN, Justice.

The sole issue for review is whether, with respect to the work in which he was engaged at the time of his injury, plaintiff was an "employee" of defendant North State Ford Truck Sales (North State) within the meaning of the Workers' Compensation Act. We conclude that he was North State's employee and accordingly affirm the Court of Appeals.

Plaintiff was seriously injured and permanently disabled on 23 July 1984 while instructing defendant North State's employees in the use of Kansas Jack equipment to repair the frames of heavy vehicles. The compensation hearing was limited by stipulation to a determination of plaintiff's employment status. The deputy commissioner received the following essentially uncontroverted evidence:

At the time of the injury, plaintiff was a self-proclaimed "specialist" in the use of Kansas Jack frame-straightening equipment and one of only three or four persons in the region qualified to teach others how to use it. Plaintiff had developed this skill and knowledge while operating his own tractor-trailer repair shop from 1973 to 1983. He used Kansas Jack equipment for frame-straightening jobs and on occasion helped a Kansas Jack field representative to demonstrate the equipment to prospective buyers. In late 1983 plaintiff closed the repair shop and became an independent sales agent for Interstate Marketing Corporation (IMC). Under the arrangement with IMC, plaintiff sold Kansas Jack frame and measuring equipment in a sixteen-county sales territory encompassing parts of Georgia and Tennessee.

For each of his sales, plaintiff was responsible for installing the equipment at the purchaser's place of business and training the purchaser's employees in the use of the equipment. Over the course of his relationship with IMC, plaintiff conducted ten to twelve such training sessions in connection with Kansas Jack sales. He received no salary or benefits from IMC and was paid on a strictly commission basis. On one occasion, IMC hired plaintiff as an "employee" to conduct a Kansas Jack workshop for which he was paid $250 per day. This was the only occasion on which plaintiff conducted a training session that was unconnected to a personal sale.

In July of 1984, defendant North State purchased some secondhand Kansas Jack frame-straightening equipment. Because its employees were not familiar with the equipment, North State contacted the Kansas Jack representative for the North Carolina sales territory and requested the name of a qualified instructor for on-site training. The representative recommended plaintiff for the job. Alan Chapman, North State's body shop manager, then negotiated with plaintiff by telephone. Plaintiff agreed to travel to Raleigh to train North State's employees on the equipment during the week of 23 July 1984. Under the agreement, plaintiff was to receive $250 per day plus expenses, "for as many or as few days as it would take." The instruction could last up to five days, depending on the trainees' progress. Mr. Chapman advised plaintiff that he was to follow the normal work schedule, instructing the trainees between the hours of 7:30 a.m. and 4:30 p.m., with a lunch break from noon until 1:00 p.m. He rejected plaintiff's suggestion that the training continue at night because he did not want to pay plaintiff and the trainees overtime. He assured plaintiff that North State would supply any necessary equipment or assistance.

Plaintiff arrived at North State on the morning of 23 July 1984 in a Kansas Jack panel truck which IMC had made available for his personal use. Plaintiff was not asked to sign an employment application, and no arrangements were made for standard employee benefits or the withholding of taxes. Mr. Chapman had the body shop employees lay the Kansas Jack equipment out on the floor. He told plaintiff he wanted the workers to have "hands-on" training that day and showed plaintiff which trucks to repair during the instruction process.

The evidence diverged somewhat as to the degree of supervision exercised by Mr. Chapman. Plaintiff testified that Mr. Chapman gave him instructions as to how the trainees should be taught. He was present during most of the morning instructional session, and during the lunch break he discussed with plaintiff what had gone on that morning and what he wanted plaintiff to do that afternoon. He then participated to some extent in the afternoon hands-on training by telling the trainees "what to do." Plaintiff further testified that he left it up to Mr. Chapman to determine when his employees were comfortable enough with the equipment to terminate the training. He was prepared to leave early in the week if Mr. Chapman determined that he was no longer needed.

Mr. Chapman testified to the contrary that although he had checked on the trainees' progress several times, he did not attempt to supervise the training in any way. He himself had no knowledge of the equipment and left the methods of instruction entirely to plaintiff's discretion.

Plaintiff's injury occurred during the afternoon hands-on training session when a chain snapped and struck him in the neck. Plaintiff suffered fractured vertebrae, resulting in quadriplegia, and amassed medical bills of approximately $300,000. Defendant North State paid plaintiff $375.56 for one day's work plus travelling expenses. Defendant insurance carrier refused to pay medical expenses or disability compensation.

Based on the foregoing, the deputy commissioner found that plaintiff had an "independent calling" to teach the use of Kansas Jack equipment and that defendant North State had no right of control over plaintiff's teaching methods. He concluded that plaintiff was an independent contractor not subject to the provisions of the Workers' Compensation Act at the time of the injury and dismissed the claim for lack of jurisdiction. The full Commission, with one member dissenting, reversed this determination, finding that North State had retained the right to control the details of plaintiff's work and concluding that plaintiff was North State's employee. A divided panel of the Court of Appeals affirmed. Defendant appealed to this Court pursuant to N.C.G.S. § 7A-30(2).

To be entitled to maintain a proceeding for workers' compensation, the claimant must be, in fact and in law, an employee of the party from whom compensation is claimed. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240 (1966); Hart v. Motors, 244 N.C. 84, 92 S.E.2d 673 (1956). The issue of whether the employer-employee relationship exists is a jurisdictional one. Lucas v. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976); Askew v. Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965). An independent contractor is not a person included within the terms of the Workers' Compensation Act, and the Industrial Commission has no jurisdiction to apply the Act to a person who is not subject to its provisions. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965).

Findings of jurisdictional fact made by the Industrial Commission are not conclusive, even when supported by competent evidence. It is incumbent upon this Court to review the evidence of record and make independent findings of fact with regard to plaintiff's employment status. Lemmerman v. Williams Oil Co., 318 N.C. 577, 350 S.E.2d 83 (1986); Lucas v. Stores, 289 N.C. 212, 221 S.E.2d 257; Askew v. Tire Co., 264 N.C. 168, 141 S.E.2d 280.

Whether one employed to perform specified work for another is to be regarded as an independent contractor or as an employee within the meaning of the Act is determined by the application of ordinary common law tests. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645; Scott v. Lumber Co., 232 N.C. 162, 59 S.E.2d 425 (1950). An independent contractor is defined at common law as one who exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work. Cooper v. Publishing Co., 258 N.C. 578, 129 S.E.2d 107 (1963); McCraw v. Mills, Inc., 233 N.C. 524, 64 S.E.2d 658 (1951). Where the party for whom the work is being done retains the right to control and direct the manner in which the details of the work are to be executed, however, it is universally held that the relationship of employer and employee is created. Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944); 1C A. Larson, The Law of Workmen's Compensation § 44.00 (1986).

We have on innumerable occasions discussed this distinction, and over the course of the years we have identified the specific factors which are ordinarily indicative of whether or not such control has been retained. See, e.g., Pearson v. Flooring Co., 247 N.C. 434, 101 S.E.2d 301 (1958); Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137.

Having carefully reviewed the testimony and exhibits in this case, we find that the following pertinent factors have been established by the greater weight of the evidence. Each of these factors tends to show that North State retained the right to control the details of plaintiff's work, incident to an employment relationship.

1. North State agreed to pay plaintiff $250 per day plus expenses. Payment of a fixed contract price or lump sum ordinarily indicates that the worker is an independent contractor, Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137, while payment by a unit of time, such as an hour, day, or week, is strong evidence that he is an employee, 1C A. Larson, The Law of Workmen's Compensation § 44.33(a); Pearson v....

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    ...(2001). "If the employer has the right of control, it is immaterial whether he actually exercises it." Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433 (1988). None of the cases cited in the briefs suggest that the drivers' status couldn't be decided simply by consid......
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