Morse v. Curtis , 6 N.C. App. 591 ( 1969 )

MALLARD, C.J.

Only two questions are presented on this appeal. The first is whether there was competent evidence upon which the trial judge could make the findings of fact: The second question is collateral to the first and is whether the facts so found support the trial judge’s conclusions of law.

Upon the hearing on the plea in bar, the trial judge found and concluded as follows:

“1. That on or about March 4, 1964, the defendant entered into a written contract with the plaintiff, Patricia Morse, wherein said plaintiff for a specified sum agreed to accept the position of a senior counselor as head of the saddle seat program for the camp 1964 season, beginning on June 25, 1964, and ending on August 20, 1964, in Brevard, North Carolina.

2. That prior to March 4, 1964, the plaintiff, Patricia Morse, was an accomplished and skilled horse woman, having participated in numerous horse shows in Western North Carolina, and during the year 1963, had given private instruction in horseback riding in Hendersonville and other counties in Western North Carolina.

3. That the plaintiff, Patricia Morse, upon accepting employment pursuant to the written contract dated March 4, 1964, located and chose horses to be used by her as head of the saddle seat riding program at Camp Illahee, Inc., which was owned and operated by the defendant.

4. That the plaintiff, Patricia Morse, was engaged during the 1964 camp season as head of the saddle seat program, and as such, had the independent use of her skill, knowledge and training in the execution of said program; was engaged as head of the saddle seat program because of her independent skill and occupation as a horseback riding instructor; that she was employed to perform said duties at the fixed price of $400.00 plus living expenses at the camp for the entire camp season; that said plaintiff in the performance of her duties had complete charge and control of said program, determining solely the type of instruction to be given and the times when such instruction was to be given, and was not subject to discharge for adopting one method of performing her duties rather than another; that said plaintiff was free to use such assistants in said program as she deemed proper, and had full control and the right to control such assistants; that said plaintiff in fact had full responsibility and control, including the right to control the saddle seat riding program at the defendant’s camp during the 1964 camp season, more particularly, from June 25, 1964, up to and including August 15, 1964, the date of the occurrence giving rise to this action.

5. That on and prior to August 15, 1964, the defendant owned and maintained a wooden shed in which was located an open water pump, consisting of inter-locking wheels and gears; that said shed was located adjacent to a public parking area also located on the defendant’s premises; that the door to said shed was allowed to remain open, and a bench had been placed therein for the use of counselors, visitors and other persons rightfully on said premises, including the plaintiff, Patricia Morse; that the defendant knew or should have known that said shed was used by invitees on the premises for shelter from the weather and as a place to smoke so as not to be observed by the children attending the camp.

6. That on August 15, 1964, a water pageant was being conducted by the defendant, to which parents of the campers and other visitors had been invited, and other camp activities had been suspended, including the saddle seat program.

7. That on the morning of August 15, 1964, the defendant instructed all camp personnel to remove their automobiles from the public parking area in order to make room for the visitors to the camp’s water pageant; that the plaintiff, Patricia Morse, accompanied other camp personnel to said parking area.

8. That on said occasion it was drizzling rain. That the plaintiff, Patricia Morse, after visiting said parking area, went, together with other camp personnel, to the pump shed, which was located adjacent thereto, for the purpose of shelter and to smoke a cigarette.

9. That on the aforesaid occasion and prior thereto on August 15, 1964, the plaintiff, Patricia Morse, was not performing any of the duties for which she had been employed, nor had said plaintiff at any time been instructed not to use the aforesaid shed.

10. That the plaintiff, Patricia Morse, on said occasion had entered the aforesaid shed and was using the same as an invitee, when the incident giving rise to this action occurred, resulting in serious personal injuries to said plaintiff.”

After the foregoing findings of fact, the trial judge made the following conclusions of law:

“1. That this Court has jurisdiction of the parties and the subject matter of these actions.

2. That the plaintiff, Patricia Morse, during the 1964 camp season and up to and including August 15, 1964, was not an employee of the defendant, but was an independent contractor.

3. That the plaintiff, Patricia Morse, was properly on the defendant’s premises and was properly using the shed on said premises as an invitee.

4. That the injuries received by the plaintiff, Patricia Morse, did not arise out of nor were they received in the course of employment by the defendant.

5. That the defendant’s pleas in bar are hereby overruled and the plaintiffs’ motions to strike the First Further Answer and Defense as set forth in the Answers are hereby sustained.

6. That this Court has jurisdiction to determine these controversies and causes of action on their merits and that the same are not subject to the provisions of the North Carolina Workmen’s Compensation Act.”

Patricia testified that she entered into a written contract with defendant. The contract was marked “P-1” for identification. Patricia also testified that the duties she was to perform for defendant were those designated on the contract. The record reveals that the paperwriting marked “P-1” “is offered in evidence by Mr. Roberts.” However, the record is silent as to whether it was admitted. If it was admitted, appellant did not see fit to include it in the record on appeal.

Upon a review of the evidence contained in the record, it appears that the findings of fact by the trial judge were supported by some competent evidence. On the other hand, there was plenary evidence which would have justified a finding that Patricia was an “employee” and acting in the course of and scope of her employment at the time of her injury.

The applicable rule is stated in 1 Strong, N.C. Index 2d, Appeal and Error, § 57:

“The court’s findings of fact are conclusive if supported by any competent evidence, and judgment supported by such findings will be affirmed, even though there is evidence contra, . . .” See also Kilby v. Dowdle, 4 N.C. App. 450, 166 S.E. 2d 875 (1969); Burgess v. Gibbs, 262 N.C. 462, 137 S.E. 2d 806 (1964).

Upon examination of the facts and conclusions, we are of the opinion and so hold that the trial judge correctly applied the facts that he found in making the conclusions of law.

Affirmed.

MoRRis and Hedrick, JJ., concur.