Lucas v. Li'l General Stores

ARNOLD, Judge. The sole question presented by this appeal is whether there existed an employer-employee relationship between defendant Li’l General Stores and decedent Leonard M. Lucas at the time of the shooting-which resulted in Lucas’ death. This is a jurisdictional question “to be determined by the rules governing the establishment of contracts, ...” Hollowell v. Department of Conservation and Development, 206 N.C. 206, 208, 173 S.E. 603, 604 (1934). Jurisdictional findings are not conclusive on appeal, but the appellate court may review the evidence and make its own findings as to jurisdiction. Hicks v. Guilford County, 267 N.C. 364, 148 S.E. 2d 240 (1966) ; Askew v. Tire Co., 264 N.C. 168, 141 S.E. 2d 280 (1965). The Industrial Commission found and concluded that Mr. Lucas entered into a contract of employment with defendant employer. Having carefully reviewed the evidence, we do not agree. The term “employee” is defined by G.S. 97-2(2) as one who is “engaged in an employment under any appointment or' contract of hire or apprenticeship, express or implied, oral or written, ...” Mrs. Lucas testified that when she was assigned to manage the Carolina Avenue Store she discussed with George Shaver, her immediate supervisor and defendant employer’s district manager, the possibility of having her husband employed as her assistant. Mr. Lucas had been dismissed for selling beer to a minor at another Li’l General Store. Shaver told Mrs. Lucas, “He can’t work over there but four days a week.” She asked him, “What about Mr. Pepper and them [Shaver’s superiors] ?” to which he replied, “Well, what they don’t know won’t hurt them.” Shaver also stated, “I’ll have to run his pay through your check.” Shaver testified that he had no authority to allow Mrs. Lucas to keep her husband in the store with her. Myron E. Jacobson, the divisional manager, testified that Shaver had no authority to put Mr. Lucas back on the payroll. It is well settled that one who deals with an agent, knowing that his authority is limited, and he is acting beyond its scope, cannot bind the principal. Texas Co. v. Stone, 232 N.C. 489, 61 [194] S.E. 2d. 348 (1950) ; Thompson v. Assurance Society, 199 N.C. 59, 154 S.E. 21 (1930); see Restatement (Second) of Agency § 166 (1958) ; cf. Research Corp. v. Hardware Co., 263 N.C. 718, 140 S.E. 2d 416 (1965). The evidence clearly shows that both Mr. and Mrs. Lucas were aware of defendant employer’s rule, that employees would be dismissed for ABC violations, and that Shaver exceeded his hiring authority by circumventing the rule. The case of Michaux v. Bottling Co., 205 N.C. 786, 172 S.E. 406 (1934), cited by plaintiff, is distinguishable. In that case, truck drivers hired boys, with the knowledge and consent of the employer, to assist in distribution of the employer’s products. When one of the'boys fell while attempting to climb in the truck, it was held that he suffered an accident that arose out of and in the course of his employment. In the instant case, there is no showing that defendant employer had any knowledge of the arrangement between Shaver and the Lucases or that Shaver’s superiors ratified his unauthorized acts. See generally 6 Strong, N. C. Index 2d, Principal and Agent, § 6, pp. 413-14. Thus, Shaver lacked both actual and apparent authority to enter into a contract for hire on behalf of Li’l General Stores with respect to decedent, Leonard M. Lucas. We find therefore that decedent was not an “employee” within the meaning of the Workmen’s Compensation Act. There being no employer-employee relationship, the Industrial Commission could not take cognizance of the claim. The order granting plaintiff’s claim is reversed. Reversed. Judges Britt and Morris concur.