1. Evidence--employer-employee relationship--memoranda and
affidavit--dated after decedent's death--not probative
In a workers' compensation action arising from the death of
a taxicab driver, an affidavit from another driver of taxicabs
owned by defendant which contained memoranda should not have been
relied upon by the Commission because the memoranda and affidavit
were dated after the driver's death. They are not probative of
whether an employee-employer relationship existed between the
driver and defendant at the time of the driver's death.
2. Workers' Compensation--employer-employee relationship--
leased taxicab
The Industrial Commission erred in a workers' compensation
action by finding that an employer-employee relationship existed
between a taxicab driver and defendant where the driver was
fatally wounded while operating a taxicab leased from defendant.
Standing alone, provisions in the contract between the driver and
defendant regarding possession of handguns while driving the
leased taxicab and permission for any other person to operate the
cab do not establish that the driver was defendant's employee.
Judge GREENE concurring in the result. Appeal by defendant from opinion and award entered 5
September 1997 by the North Carolina Industrial Commission.
Heard in the Court of Appeals 17 November 1998.
Parrish, Newton & Rabil, LLP, by Daniel R. Johnston and Carl
F. Parrish, for plaintiff-appellee Richard Dean Fulcher.
Davis and Hamrick, L.L.P., by Shannon L. Warf, L. Kathryn
Slocumb, and H. Lee Davis, Jr., for defendant-appellant.
LEWIS, Judge.
Defendant Willard's Cab Company has a franchise from the
City of Winston-Salem to operate a taxicab business. It owns a
number of vehicles equipped for use as taxicabs. On 26 October
1994, defendant and Byron Richard Wall entered into a contract in
which defendant was designated as “lessor” and Wall was
designated as “lessee.” Defendant agreed to rent a taxicab in
good condition to Wall, to provide liability insurance on the
taxicab, and to maintain it. Wall was to pay defendant for the
use of a taxicab each time he drove one. This "per-shift" fee
was $55.00. The lease provided that Wall was free from
defendant's "control or direction," and that he was to "exercise
complete discretion in the operation" of the leased taxicab.
Wall was to keep all fees and tips he collected, and he was not
restricted to any specific geographic area in the operation ofhis taxicab. He was also free to take or refuse calls from
defendant's dispatcher.
The lease expressly denied any employer-employee
relationship between Wall and defendant. Defendant did not
withhold income taxes or Social Security taxes from Wall. The
lease further provided that Wall was not to "carry or possess a
handgun" while operating the vehicle, and was not to "permit . .
. the operation of the . . . vehicle as a taxicab by any person
other than . . . himself." Wall was also required to comply with
certain Winston-Salem ordinances regulating the operation of
taxicabs.
On 1 November 1994, Wall was operating a taxicab leased from
defendant. He accepted a dispatch to pick up a passenger at
approximately 1:00 a.m. About 1:35 a.m., he was found outside
his cab, bleeding from a gunshot wound to the back of the head.
He later died as a result of the wound.
The decedent's estate filed a workers' compensation claim
some time prior to 18 December 1995. Some time between 6
February 1996 and 6 June 1996, the decedent's dependent child,
Richard Dean Fulcher, and the decedent's parents, Mr. and Mrs.
R.H. Wall, were substituted as plaintiffs. Fulcher is
represented by his mother and guardian ad litem, Barbara Wall.
Sustaining the decision of the deputy commissioner, the FullCommission found that an employer-employee relationship existed
and that Wall was fatally wounded in the course and scope of his
employment. It confirmed the award of benefits to the
plaintiffs.
On appeal, defendant contends that the Commission erred by
admitting into evidence the affidavit of Spurgeon W. Wood, by
finding that an employer-employee relationship existed between
Wall and defendant, and by finding that the death of Wall was
attributable to an accident arising out of and in the course of
his employment.
I
[1]After evidence was presented to the deputy commissioner,
plaintiffs were allowed to introduce into evidence an affidavit
of Spurgeon Wood, who also drove taxicabs owned by defendant.
The affidavit contained two memoranda dated 17 November 1994 and
22 August 1995 respectively. The November 1994 memorandum
informed "All Drivers" that thenceforth, there would be different
check-in times and the drivers could select their times. The
August 1995 memorandum, addressed to "All Owner Operators,”
stated that they would "be given two weeks of vacation on their
vehicles." Defendant contends that these documents should not
have been admitted for the purpose of establishing that Wall was
defendant's employee. We agree. "'As a general rule, mere . . . proof of the existence of a
condition or state of facts at a given time . . . does not raise
any presumption that the same condition or facts existed at a
prior date.'"
Sloan v. Light Co., 248 N.C. 125, 133, 102 S.E.2d
822, 828 (1958) (quoting 31 C.J.S. Evidence, § 140). The
memoranda and affidavit are dated after Wall's death. They are
not probative of whether an employee-employer relationship
existed between Wall and defendant at the time of Wall's death.
The Commission should not have relied on them to reach its
decision. The Commission's Finding of Fact Number Nine, to the
effect that on 1 November 1994 defendant had "a schedule
requiring drivers to check in at specified times," is not
supported by competent evidence.
II
[2]We next consider whether Wall was an employee of
defendant at the time of his death. "[T]he existence of the
employer-employee relationship at the time of the accident is a
jurisdictional fact. . . . The 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. Li'l General Stores, 289 N.C. 212, 218,
221 S.E.2d 257, 261 (1976). The law applicable to this issue is
summarized in
Gordon v. Garner, 127 N.C. App. 649, 658-59, 493S.E.2d 58, 63 (1997) (footnotes omitted),
disc. review denied,
347 N.C. 670, 500 S.E.2d 86 (1998): In
Hayes v. Elon College,
[224 N.C. 11, 29 S.E.2d 137 (1944),] our Supreme Court concluded
that the central issue in determining whether one is an
independent contractor or an employee is whether the hiring party
"retained the right of control or superintendence over the
contractor or employee as to details." [
Id. at 15, 29 S.E.2d at
140.] The court then went on to explain that there are generally
eight factors to be considered, none of which are by themselves
determinative, when deciding the degree of control exercised in a
given situation. These factors include whether . . . "[t]he
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.]
In this case, the Commission's findings of fact do not
support its conclusion that an employer-employee relationship
existed between defendant and Wall. These findings indicate that
"the right of control did not rest" with defendant.
Alford v.
Victory Cab Co., 30 N.C. App. 657, 661, 228 S.E.2d 43, 46 (1976).
Alford also involved a taxicab driver who leased his vehicle
for a fixed amount per shift and retained his fares and tips.
There, on the issue of the driver's employment status, we said,
Findings of fact support the
Commissioners' conclusion that appellant was
an independent contractor, because the right
of control did not rest in Victory. Claimant
rented a taxicab from Victory for a twenty-
four hour period for a flat fee of $15, andVictory had no supervision or control over
the manner or method claimant chose to
operate that cab. Claimant had complete
control over his work schedule while he used
the cab. He could disregard the radio
dispatcher, use the cab for his own purposes
during the time it was rented, and he kept
all the fares and tips he earned.
Id. at 661, 228 S.E.2d at 46 (citations omitted).
Plaintiffs argue that this case is distinguishable from
Alford because here, (1) Wall was obligated by his contract with
defendant not to carry or possess a handgun while driving
defendant's taxicab and not to permit any other person to operate
the cab, and (2) the contract states that the handgun restriction
was "in the interest of both parties to enhance the public image,
promote personal safety and increase revenues." While these
provisions do show that defendant exerted some control over
Wall's work, they are the only such evidence of an employer-
employee relationship. Standing alone, they do not establish
that Wall was defendant's employee.
As noted above, the
Hayes court indicated that when a worker
has the "free[dom] to use such assistants as he may think
proper," it suggests that he is an independent contractor rather
than an employee; in contrast,
Hayes implies, a worker is more
likely to be an employee of another when the other party has
prohibited him from procuring and using assistants. 224 N.C. at16, 29 S.E.2d at 140. In this case, however, the contractual
provision prohibiting non-lessees from operating defendant's
taxicabs does
not demonstrate defendant's employer-like control
over Wall. Rather, this provision was designed to protect
defendant's property from being operated by persons it had not
approved. This case is not a case like
Hayes, where a contract
for the installation of six telephone poles and the transfer of
electrical wires from old poles to the new poles prohibited the
installer from choosing and hiring his own assistants.
Performance of the
Hayes contract
required the labor of many
people, whereas the performance of Wall's side of the contract in
this case required the labor of just one person: Wall, the cab
driver.
The Commission's findings do not show that defendant had the
right to exert an employer's degree of control over Wall.
Because an employer-employee relationship is a prerequisite to
coverage by, and recovery under, the Workers' Compensation Act,
see N.C. Gen. Stat. § 97-2 (Cum. Supp. 1997), § 97-3 (1991);
Lucas, 289 N.C. at 218, 221 S.E.2d at 261, and because that
relationship is lacking in this case, we need not reach
defendant's remaining assignment of error.
Reversed.
Judge HORTON concurs. Judge GREENE concurs in the result.
==========================
GREENE, Judge, concurring in the result.
I do not agree that Wall was an independent contractor, but
because I believe his injury was not an accident arising out of
and in the course of his employment, I agree with the majority
that the award of the Commission must be reversed.
(See footnote 1)
There are several items of evidence, necessary for my
analysis, not included in the recitation of the facts by the
majority. The evidence revealed Wall was shot in the back of the
head, shell casings were found in the back seat of the taxicab,
and Wall's blood was found splattered on the inside of the
taxicab's windshield. The Commission found Defendant knew many
of the customers seeking taxicab service were dangerous, the
killing of Wall was "an unlooked for and untoward event," and
Wall was shot in the back of the head at 1:35 a.m. "while
operating the taxicab."
The Commission concluded: (1) there was an employer-employee
relationship between Wall and Defendant on 1 November 1994; and
(2) the death of Wall on 1 November 1994 was an injury by
accident arising out of and in the course of his employment.
The ultimate test for determining whether an employer-
employee relationship exists, rather than that of an employer and
independent contractor, is the extent to which the party for whom
the work is being done has the right to control the manner and
method in which the work is performed. Hayes v. Elon College,
224 N.C. 11, 15-16, 29 S.E.2d 137, 140 (1944). The Hayes court
enunciated several factors that can be used in making this
determination, including the freedom to use such assistants as
the person employed thinks proper. Id.
In this case, Defendant owned a taxicab franchise and
entered into a contract with drivers and owners for the operation
of the taxicabs. The driver paid for his own gasoline, collected
and kept his own fares, and worked at his own schedule. The
fares were controlled, not by Defendant, but by the City of
Winston-Salem. The drivers were not able to possess firearms
while operating the taxicabs, nor were they allowed to permit any
other person to assist them in the operation of the taxicabs.
Although the relationship has some indicia of an independent
contractor, I believe Defendant's self-imposed prohibitions
against the possession of firearms and the use of assistants
moves this relationship into one of employer-employee. Cf.Alford v. Cab Co., 30 N.C. App. 657, 228 S.E.2d 43 (1976) (city
imposed controls over taxicab driver not sufficient to justify
classification of driver as employee). The fact that the handgun
restriction may have been "in the interest of both parties" is
not material, as it was nonetheless a restriction imposed by the
Defendant. Likewise, though the prohibition against the use of
assistants may have been designed to protect Defendant's
property, it was still a restriction imposed by Defendant. It
surely cannot be disputed that these two restrictions constitute
some control of the manner and method in which the driving of the
taxicab was to be performed.
Any effort by the majority to distinguish the facts in Hayes
from the facts in this case is not helpful. Indeed, the facts
are different, but the issue is the same: whether there was
control over the manner and method of doing the work. Here the
work of driving the taxicab only requires one person, as noted by
the majority, but it did not, in the absence of the restriction
on the use of assistants, have to be Wall.
Under the North Carolina Workers' Compensation Act (Act), an
injury is compensable if it is: (1) by accident; (2) arising out
of the employment; and (3) in the course of the employment. N.C.G.S. § 97-2(6) (Supp. 1997);
Robbins v. Nicholson, 281 N.C.
234, 238, 188 S.E.2d 350, 353 (1972). Whether the injury is an
accident arising out of and in the course of the employment is a
mixed question of law and fact.
Gallimore v. Marilyn's Shoes,
292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). In other words,
this Court is bound by the Commission's findings of how, when,
and where the injury occurred, provided those findings are
supported by competent evidence. Whether those findings support
the conclusion that the injury was an accident arising out of and
in the course of the employment presents a question of law and is
fully reviewable on appeal.
Accident
An accident is an unusual event or result which is not
expected or designed by the injured employee.
Adams v.
Burlington Industries, 61 N.C. App. 258, 300 S.E.2d 455 (1983).
As a general proposition, therefore, if an injury occurs under
normal work conditions and the employee was injured while
performing his regular duties in the usual and customary manner,
there is no accident within the meaning of the Act.
Porter v.
Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360 (1980).
Assaults may constitute an accident, if they are unexpected and
without design on the part of the employee who suffers theassault.
Gallimore, 292 N.C. at 402, 233 S.E.2d at 531.
Defendant argues that the assault against Wall in this case
was expected and thus not an accident within the meaning of the
Act. Defendant suggests the finding by the Commission that the
operation of a taxicab is a dangerous activity supports its
argument. I disagree.
Defendant's argument necessarily rests on the premise that
an injury is expected if the injured employee is employed to
perform a dangerous job, and is injured while performing that
job. If our courts accepted this premise, employees would
receive no protection under the Act, when performing the very job
they were employed to perform, if the job is dangerous and the
injury is related to the dangerous activity. For example, there
would be no workers' compensation coverage for the police officer
assigned to the bomb squad, if the bomb goes off when he is
trying to disarm it. Additionally, there would be no coverage
for the coal miner who enters into the coal mine to dig the coal
and is injured in the process. I therefore reject Defendant's
argument and would hold that the finding of the Commission that
Wall, a taxicab driver, was shot in the back of the head, an
unexpected event, supports its conclusion that his death was an
accident within the meaning of the Act.
See 2 Arthur Larson,
Larson's Workers' Compensation Law § 37.20 (1998).
"Arising out of employment," refers to the manner in which
the injury occurred, its cause.
Taylor v. Twin City Club, 260
N.C. 435, 132 S.E.2d 865 (1963). In other words, whether the
injury was a natural and probable consequence of the employment.
Perry v. Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964). If
the injury is caused by a "hazard to which the employee would
have been equally exposed apart from the employment, or from the
hazard common to others, it does not arise out of the
employment."
Cole v. Guilford County, 259 N.C. 724, 727, 131
S.E.2d 308, 311 (1963).
"In the course of the employment" refers to the time, place,
and circumstances under which the injury occurs.
Robbins, 281
N.C. at 238, 188 S.E.2d at 353. The ultimate inquiry is whether
the employee was, at the time of the injury, doing the work of
his employer. Leonard T. Jernigan, Jr.,
North Carolina Workers'
Compensation § 6-1 (2d ed. 1995). An injury to an employee while
he is performing acts "solely for the benefit or purpose of the
employee or a third person" are not compensable.
Lewis v.
Tobacco Co., 260 N.C. 410, 412, 132 S.E.2d 877, 879 (1963).
In this case, the Commission found as fact that Wall wasshot in the back of the head at 1:35 a.m. "while operating the
taxicab." There is no dispute that he was dispatched at 1:00
a.m. to a location in Winston-Salem. There are no findings and
there is no evidence, however, on whether the person who shot
Wall was the person who requested the dispatch, a person about to
be or being transported for the benefit of Defendant, a person
assaulting Wall as he was doing the business of Defendant, or an
assault occurring at a time while Wall was not doing the work of
Defendant. The fact that Wall was killed at 1:35 a.m. "while
operating the taxicab," after having received a 1:00 a.m.
dispatch, does not answer the question of whether he was
operating the taxicab at the time of the killing and in the work
of Defendant. Because Plaintiffs had the burden of proving each
element of their claim,
Taylor, 260 N.C. at 437, 132 S.E.2d at
867, and failed to meet this burden, the Commission erred in
concluding that Wall was killed arising out of and in the course
of his employment with Defendant.
(See footnote 2)
Accordingly, though Wall wasan employee of Defendant, I would reverse the Commission's award
because his injury, though an accident, did not arise out of and
in the course of his employment with Defendant.
Footnote: 1