Youngblood v. North State Ford Truck Sales

87 N.C. App. 35 | N.C. Ct. App. | 1987

Lead Opinion

PHILLIPS, Judge.

The only question presented by this appeal is whether within the contemplation of our Workers’ Compensation Act plaintiff was an employee of defendant North State Ford Truck Sales when the accident happened. This being a jurisdictional question, G.S. 97-2, the facts found by the Industrial Commission, though supported by competent evidence, are not binding upon us. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E. 2d 280 (1965). Nevertheless, after reviewing all the evidence recorded we adopt the findings of fact made by the Full Commission and conclude as it did that plaintiff was defendant North State Ford’s employee at the time involved.

The dominant factor in determining whether a hired hand is an employee or an independent contractor is the employer’s authority to control how the person hired accomplishes the task to be done; and if that right to control exists it makes no difference that it is not exercised. Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E. 2d 137 (1944); Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591 (1930); Beal v. Champion Fiber Co., 154 N.C. 147, 69 S.E. 834 (1910). Here, as the evidence and findings show, supervisory authority was both retained and exercised by North State Ford. Plaintiff was told when to begin and stop work and when to break for lunch; he was told which trucks to use in instructing defendant’s trainees, and to begin “hands-on” training at a certain point. That defendant’s employees were not skilled Kansas Jack equipment operators and thus could not control the technical details of plaintiffs work is neither material nor unusual; as it is a rare employer today that does not employ one or more persons to operate computers, word processors and other machines that are beyond his ken. The control that is most significant is the ultimate control of hiring and firing, and under the employment agreement North State had the right to discharge plaintiff at any time, since the instruction period could be terminated any time North State thought that the trainees’ progress or lack of progress justified. And plaintiffs manner of compensation was similar to that of North State’s other employees as they were paid for the hours worked and plaintiff was paid for the days worked. Durham v. McLamb, 59 N.C. App. 165, 296 S.E. 2d 3 (1982). It is also significant, we think, that although plaintiff was engaged in several commercial activities — selling Kansas Jack equipment, selling furniture, and selling electronic equipment — he was not engaged in the independent business of instructing in the use of Kansas Jack equipment; and it was while instructing defendant’s mechanics at defendant’s plant, for the benefit of defendant’s business, that he was injured. Defendant’s several arguments are all answered by the findings of fact and answering them again would serve no purpose.

Affirmed.

Judge COZORT concurs. Judge Greene dissents.

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Dissenting Opinion

Judge GREENE

dissenting.

I disagree with the majority in two respects. First, I cannot adopt the findings of fact made by the Full Commission as I do not think they properly reflect the evidence. Second, I would find that the plaintiff was an independent contractor at the time of the injury and not an employee of the defendant North State Ford.

I

Since the determination of whether the plaintiff is an employee or an independent contractor is a jurisdictional question, “[t]he reviewing court has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record.” Lucas v. Stores, 289 N.C. 212, 218, 221 S.E. 2d 257, 261 (1976).

In reviewing all the evidence in this case, I find the following relevant facts: 1) Plaintiff was a salesman who sold Kansas Jack truck frames and measuring equipment in the Atlanta, Georgia area. He was paid on a commission basis. 2) Plaintiff, after selling the equipment, would train the buyer’s employees in the use of the equipment. He had done this on at least ten or twelve occasions. 3) On one occasion he conducted a training school in Savannah, Georgia for someone who had purchased the framing equipment from another salesman. 4) Plaintiff was one of three persons in the area capable of teaching the use of the Kansas Jack frame-straightening equipment. 5) Defendant contacted plaintiff and requested plaintiff to travel to Raleigh and train defendant’s employees in the use of the Kansas Jack frame equipment. Defendant had purchased the equipment from someone else. 6) Plaintiff offered to conduct the training for a price of $250 a day plus expenses and gave defendant several dates when he could do the training. The parties agreed to begin the training on 23 July 1984 at the rate of $250 per day plus expenses. 7) Plaintiff told defendant that it usually took four to five days to complete the training but that this time could vary. The parties had no agreement as to who would determine when the training was completed. 8) Defendant informed plaintiff of the shop employees’ hours and told him that it expected him to do the training during those hours. 9) Defendant requested plaintiff to use a “hands on” approach to teaching by straightening some frames of trucks defendant made available. Plaintiff used his theory and methods of teaching and conducted the training for defendant in his usual manner. 10) Occasionally, one of defendant’s supervisors would come into the teaching area to see how things were going. 11) Plaintiff determined the materials, equipment and assistants needed for the teaching of the course and defendant provided these components at the plaintiffs request. 12) Plaintiff did not use the time cards used by the employees of defendant and no income taxes or social security were withheld from plaintiffs earnings.

II

In determining whether plaintiff is an independent contractor or an employee, it is necessary to determine if the worker has “that degree of independence necessary to require his classification as independent contractor rather than employee.” Hayes v. Elon College, 224 N.C. 11, 16, 29 S.E. 2d 137, 140 (1944). The Hayes Court enumerated several factors that should be used in making this determination:

The person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.

Id. at 16, 29 S.E. 2d at 140. There is no formula for weighing the relative factors but it is clear that the presence or absence of any one factor is not controlling in the determination. The factors are to be “considered along with all other circumstances.” Id.

My review of the facts in this case convince me that plaintiff had the degree of independence necessary to require his classification as an independent contractor rather than employee. I find the following facts cumulatively decisive: 1) Plaintiff had a special knowledge of Kansas Jack motor vehicle frame-straightening equipment. 2) Plaintiff was engaged in a separate and distinct occupation from that of defendant and furnished this service to others. 3) The teaching of the use of the Kansas Jack equipment was not a regular part of defendant’s business. 4) Plaintiff s work at defendant’s business was for a limited period of time. 5) Plaintiff taught the course consistent with his usual method of teaching. 6) Defendant was totally unfamiliar with how to use the equipment. 7) Plaintiff determined the price he was paid for his services. 8) Plaintiff determined the materials, equipment, and assistants needed for the teaching of the course and defendant provided these components at plaintiffs request. 9) Defendant selected the dates of the training from a limited schedule plaintiff provided.

The majority finds the defendant’s supervisory authority over the plaintiff, its alleged right to fire the plaintiff, and method of payment determinative of the issue. I find none of these facts inconsistent with my conclusion that plaintiff was an independent contractor. I find the general supervision defendant provided plaintiff to be within reasonable limitations. See McCraw v. Mills, Inc., 233 N.C. 524, 64 S.E. 2d 658 (1951) and Pumps, Inc. v. Woolworth Co., 220 N.C. 499, 17 S.E. 2d 639 (1941). As to the right to fire, I find the evidence unclear and only find there was no agreement on the issue. In any event, the right to fire is not conclusive on the issue of whether the plaintiff is an employee or an independent contractor and is only one of the several elements to be considered. The payment of the plaintiff on a daily basis, although again some evidence of “employee” status, is not conclusive. Furthermore, in this case in addition to a daily rate of payment plaintiff was to also receive his expenses.

Ill

Therefore, I conclude the Industrial Commission was without jurisdiction over plaintiffs claim and would reverse and remand to the Industrial Commission with the direction that the action be dismissed.