Greenway v. Riverside Manufacturing Co.

DROgden, J. Motion was made to dismiss tbe appeal upon tbe ground that tbe affidavit and orders did not comply with tbe statute regulating pauper appeals. However, a certificate from the clerk, under date of 15 March, 1934, discloses compliance with tbe statute and the motion to dismiss is denied. The right of plaintiffs to assert their claim is not challenged in this Court; nor is it disputed that Willie Greenway was injured in tbe course of bis employment. Tbe carrier insists that Spivey was an inde *603 pendent contractor and that the load of logs, which occasioned the injury and subsequent death of the deceased, was to be delivered to the Camp Manufacturing Company, and hence, at the time of his injury, he was in the employ of said concern. The opinions of the hearing commissioner and of the full Commission discloses a positive and unequivocal finding of the fact that at the time of his injury, Willie Green-way “was in the employ of the Riverside Manufacturing Company.” Therefore, the sole question involved in this appeal is whether there is any competent evidence tending to support such finding. The defendant carrier covered Willie Greenway under a policy written and delivered to the Riverside Manufacturing Company. It received pay for assuming the risk of his injury or death in the course of his employment. It had assumed such risk by virtue of the letter of 20 November, from the Riverside Manufacturing Company. In this letter the said Manufacturing Company referred to Spivey as a “logging contractor, who is logging for us.” Spivey testified at the first hearing that the load of logs occasioning the injury to the deceased was to be delivered to the Camp Manufacturing Company, but at a subsequent hearing he said: “This particular log came off my own land. It was my individual land Greenway was hauling from when he got hurt. You asked me if the logs were going to the Camp Manufacturing Company. Right at that time, on the spur of the moment, I thought they were. . . . After I was on the stand at Halifax I went back to my home and figured up where it was cut, the loads, and began to think about it, and I remembered that I did have some logs left. ... I know they did not go to the Camp Manufacturing Company. . . . I remember where I piled the logs and remembered the day I moved them over to the Riverside Manufacturing Company.” Hence there is competent evidence that at the time of his injury the deceased was hauling logs to the Riverside Manufacturing Company plant and was at that instant covered by a policy of insurance written by the defendant carrier as an employee of the said Riverside Manufacturing Company. Certainly, as against the defendant carrier, the sole appellant in the Superior Court, these facts constitute some competent evidence of employment by the Riverside Manufacturing Company. Nor is this all. On 21 January, 1932, during the lifetime of deceased, the defendant carrier entered into a written agreement with him to pay $7.00 per week, and after his death the defendant carrier entered into an agreement with his widow, Ellen Moore Greenway, to pay to her and her minor children $7.00 per week. While there was allegation of fraud contained in an affidavit attached to a petition to the Industrial Commission to set aside the award, no evidence of fraud or mutual mistake so far as the claimants are concerned, was offered at any of the hearings. *604 In the final analysis the entire record produces a situation substantially as follows: The carrier admitted that Willie Greenway was an employee of the Riverside Manufacturing Company when it undertook to cover him with a policy of insurance and received for such coverage the stipulated payments. The carrier further recognized Willie Green-way as an employee of the Riverside Manufacturing Company in his lifetime by making a contract with him to pay $7.00 per week. The defendant carrier further recognized Willie Greenway as an employee of the Riverside Manufacturing Company by making an agreement after his death with his dependents to pay said $7.00 per week. This Court, speaking through Reeves v. Parker-Graham-Sexton, Inc., 199 N. C., 236, 154 S. E., 66, declared: “The defendant, Travelers Insurance Company, having been paid the premium by defendant, Parker-Graham-Sexton, Incorporated, employer, to pay compensation in death cases where there are no dependents, as in the present case, is hardly in a position to complain.” See Jones v. Trust Co., ante, 214. The Court is of the opinion that the judgment vacating the award of the Industrial Commission, was improvidently entered. Reversed. ScheNck, J., took no part in the consideration or decision of this case.