Johnson v. Asheville Hosiery Co., 199 N.C. 38 (1930)

June 16, 1930 · Supreme Court of North Carolina
199 N.C. 38


(Filed 16 June, 1930.)

1. Master and Servant D a, F b — Workman under direction of employer is not independent contractor and Compensation Act applies.

An independent contractor is one who is to complete tlie subject-matter of bis contract under tbe terms thereof independently of direction or control of tbe other party to tbe contract as to the manner or method by which the work is to be accomplished, and where a person claiming compensation under the Workmen’s Compensation Act is injured while doing work under the direction of the employer as the work progressed he may not be denied his claim upon the ground that he was an independent contractor at the time of his injury.

a. Master and Servant P a — Workmen’s Compensation Act should be liberally construed.

The Workmen’s Compensation Act is to be construed liberally to effectuate the broad intent of the act to provide compensation for employees sustaining an injury arising out of and in the course of the employment, and no technical or strained construction should be given to defeat this purpose.

3. Master and Servant P b — In this case held: employment was in furtherance of gsnex’al business and was not casual, and Compensation Act applied.

The restriction of the Workmen’s Compensation Act excluding injuries sustained in casual employment will not exclude an applicant under the provisions of the act when he sustains injuries in the course of the general trade, business etc., of the employer and material or expedient therein, and the painting of the interior of a machine room to give the employees therein a better light or for the protection of the permanent structure is not a casual employment and is one in the general course of business, and the Workmen’s Compensation Act applies to an injury received by a workman engaged in such painting.

4. Same — Although employment is casual Compensation Act applies if the employment is in furtherance of the general business, trade, etc.

Section 14(b) of the Workmen’s Compensation Act providing that the act shall not apply to casual employees, is not totally repugnant to section 2(b) providing for compensation for an injury to an employee while “in the course of the trade, business,” etc., and an employee is entitled to compensation even if the employment is casual if he is injured in the course of the trade, business, etc.

Civil action, before Sink, Special Judge, at April Term, 1930, of Buncombe.

Tlio plaintiff filed a claim with the Industrial Commission under the Workmen’s Compensation Act for injuries sustained in falling off a scaffold while engaged in painting a factory of the defendant. The *39plaintiff was a painter and was called by the defendant to repair a spray gun at its plant. While performing this work the plaintiff was employed to paint the ceiling of the factory of defendant at an agreed price of $1.25 per hour. The defendant furnished the paint and a helper. No time was fixed in which the work was to be completed. The room in which the plaintiff was painting the ceiling was occupied by machinery and used in the regular business of defendant. It was advisable to paint the ceiling white in order to afford more light in the room. The evidence tended to show that the defendant told the plaintiff “when to paint and where,” and furthermore, that the defendant had the right under the verbal contract to discharge the plaintiff at any time the work was not progressing to its satisfaction. Mr. Baer, an official of the defendant, was asked the following question: “Do you consider painting the mill as incidental to your operating, that is, in the course of your business as a hosiery manufacturer?” The witness answered: “Yes, sir, it would be a part of the maintenance of the mill the same as it is necessary to keep the roof repaired. It is not absolutely necessary that the ceiling be painted and kept painted in a light color in order to afford the proper light for the employees, but it is better. It also protects the ceiling; like the roof and girders, it is subject to the actions of the elements.” There was evidence to the effect that it would require about four days to complete the work.

The cause was heard by Commissioner Dorsett and an award made.

Upon appeal to the Full Commission it was found as a fact “that on 14 July, 1929, the plaintiff was injured, the said injury resulting from an accident arising out of and in the course of certain employment.” The Full Commission affirmed the award and there was an appeal to the Superior Court. The judge of the Superior Court affirmed the judgment and award of the Industrial Commission, from which judgment the defendant appealed.

Lee & Lee for plaintiff.

J. G. Gheesborough for defendant.

Beogden, J.

Two questions of law are presented by the record:

1. Was the plaintiff an independent contractor and therefore not entitled to compensation?

2. Was the employment “both casual and not in the course of the trade, business, profession or occupation of his employer?”

Upon the facts appearing in the record, the first question of law must be answered in the negative. “An independent contractor has been defined as one who exercises an independent employment, contracts to do a piece of work according to his own judgment and methods and without *40being subject to bis employer except as to tbe results of tbe work and wbo bas tbe right to employ and direct tbe action of tbe workmen, independently of sucb employer and freed from any superior authority in him to say bow tbe specified work shall be done or what tbe laborers shall do as it progresses.” Greer v. Construction Co., 190 N. C., 632, 130 S. E., 739. Tbe principle thus announced is amply supported by tbe authorities assembled in tbe Greer case, supra.

In tbe case at bar tbe employer directed tbe progress of tbe work and reserved control of tbe plaintiff and other workmen. These facts exclude tbe theory of independent contractor.

Tbe second question of law involves tbe construction of section 2(b) of tbe Compensation Act. Said section undertakes to define tbe word employment and specifically excludes from tbe operation of tbe act “persons whose employment is both casual and not in tbe course of tbe trade, business, profession or occupation of bis employer,” etc. By virtue of tbe express terms of tbe statute, in order to exclude an employee, bis employment must be casual, and 'in addition thereto, not in tbe course of tbe business of tbe employer. In other words, even if tbe employment be casual, tbe employee is not deprived of tbe benefits of tbe act if tbe employment is in tbe course of tbe business of tbe employer. It is further provided in section 60 that tbe award of tbe Commission “shall be conclusive and binding as to all questions of fact.” However, errors of law are reviewable.

It is generally held by tbe courts that tbe various Compensation Acts of tbe Union should be liberally construed to tbe end that tbe benefits thereof should not be denied upon technical, narrow and strict interpretation. Hence it is generally held that provisos excluding an employee from tbe broad and comprehensive definition of sucb term ought to be strictly construed in order that tbe predominating purposes of tbe act may be fully effectuated. National Cast Iron Pipe Co. v. Hegginbotham, 112 Southern, 734; Eddington v. Northwestern Bell Telephone Co., 202 N. W., 374.

Appellate courts throughout tbe nation have adopted divergent views in interpreting tbe word “casual” and tbe words “course of tbe trade, business, profession or occupation of bis employer.” These views, however, are produced by tbe variable wording of given statutes. In some instances, if the employment is casual, tbe injured employee is not entitled to tbe benefits of tbe statute. In others, if tbe employment is not in tbe course of tbe employer’s business, tbe injured employee is not entitled to the benefits of tbe statute. However, under tbe terms of our statute, in order to exclude an employee, the employment must be “both casual and not in tbe course of tbe trade, business,” etc.

*41Tbe Virginia Court in Hoffer Bros. v. Smith, 138 S. E., 474, said: “Tbe test is tbe nature of tbe employment and not tbe nature of tbe contract. An employment cannot be said to be casual where it is in tbe usual course of tbe trade, business, or occupation of tbe employer. But it is casual when not permanent nor periodically regular, but occasional or by chance, and not in the usual course of tbe employer’s trade or business.” It bas also been generally beld tbat tbe kind of work done and not tbe duration of service is tbe determining factor. So tbat, if tbe work pertains to tbe business of tbe employer and is witbin tbe general scope of its purpose, tbe employment is not of a casual nature, although the hiring be for only a short period of time. De Carli v. Business Warehouse Co., 140 Atl., 637. Thus it has been held that making repairs on a building owned by a creamery is within the usual course of tbe business of the employment, and, therefore, compensable. Gross et al. v. Industrial Commission, 167 N. W., 809. Furthermore, it has been held that even though the employment is casual, the injury is compensable if occurring within tbe course of the employer’s business. Pershing v. Citizens’ Traction Co., 144 Atlantic, 91; Hoshiko v. Industrial Commission, 266 Pac., 1114; Pfister v. Doon Electric Co., 202 N. W., 371.

In the case at bar the defendant was operating a factory for manufacturing hosiery and used machinery therein for such purpose. In order to facilitate the work and to render the machine-room reasonably safe for operatives, it was necessary to perfect the lighting arrangement of tbe room. It was conceived that the painting of the ceiling of the room in white or a light color would add to the safety and facility of operation. The defendant, as an employer of labor, was bound in the exercise of reasonable care to furnish light for the operation of machinery. Whether he furnished the necessary light by means of electricity or by painting tbe ceiling, or both, was immaterial so far as plaintiff was concerned, if, as a matter of fact, at the time of his injury, he was engaged in an employment incident to the proper operation of the factory. An official of the defendant testified that he considered “painting tbe mill as incidental to operation,” and, as such, it would be a part of tbe maintenance of the mill, “the same as it is necessary to keep the roof repaired.”

Even though it be conceded that the employment of the plaintiff was casual, he is not precluded from the benefits of the Compensation Act unless it should also appear'that he was not engaged in the course of the trade, business, profession or occupation of his employer. Tbe Industrial Commission found as a fact that the plaintiff was engaged in the course of the employer’s business, and there is evidence in the record to support such finding. In such event, whether the Appellate Court agrees with *42tbe conclusion of tbe Commission or not, tbe finding of sucb fact is conclusive, by express declaration of tbe statute.

Moreover, tbe Higginbotham case, supra, is a direct authority for tbe award made by tbe Industrial Commission. In tbat case tbe defendant operated a large industrial plant and owned about 101 bouses for tbe use of employees. It kept no regular force of painters, but only repaired and painted as deterioration necessitated. Tbe plaintiff was employed by tbe day and was injured as a result of tbe falling off a ladder upon wbicb be was standing. Tbe Alabama Compensation Act by express terms did not apply to “persons whose employment at tbe time of tbe injury is casual and not in tbe usual course of tbe trade, business, profession or occupation of tbe employer,” etc. Thus the Alabama act is practically identical with tbe North Carolina statute. Tbe Court held tbat tbe injured employee was performing tbe incidental and necessary repair work on tbe employer’s bouse, and, therefore, entitled to tbe benefits of tbe Compensation Act.

Section 14(b) of tbe North Carolina Compensation Act provides tbat “this act shall not apply to casual employees, farm laborers,” etc. This section, however, is not totally repugnant to section 2(b) for tbe reason tbat even if the employment be casual tbe employee is still entitled to compensation if be was injured while “in tbe course of tbe trade, business, profession or occupation of bis employer,” etc.

Upon tbe whole record we are of tbe opinion tbat tbe award was properly made, and tbe judgment is