Johnson v. Asheville Hosiery Co.

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 *40 being 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. *41 Tbe 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 *42 tbe 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 Affirmed.