Roth v. McCord & Dellinger , 232 N.C. 678 ( 1950 )

62 S.E.2d 64 (1950) 232 N.C. 678

ROTH et al.
v.
McCORD & DELLINGER et al.

No. 529.

Supreme Court of North Carolina.

November 22, 1950.

M. K. Harrill and Smathers & Carpenter, all of Charlotte, for plaintiff-appellant.

Pierce & Blakeney, Charlotte, for defendants McCord & Dellinger and Bituminous Cas. Corp.

B. Irvin Boyle, Charlotte, for defendants Central Motor Lines, Inc., and Travelers Ins. Co.

BARNHILL, Justice.

There is no contest as to the right of plaintiffs to death benefit compensation under the Workmen's Compensation Act. G. S. § 97-38 et seq. The controversy is as to which group of defendants is liable therefor. As to this there is no valid ground for debate. The judgment entered must be affirmed for two reasons:

(1) Roth, at the time of his injury and death, was operating a vehicle being used by the Motor Lines to haul freight in the course of its business as a common carrier under franchise from the Interstate Commerce Commission. The vehicle was being operated under its identification plate. "The operation of the truck was in law under the supervision and control of the interstate franchise carrier and could be lawfully operated only by those standing in the relationship of employees to the authorized carrier. " Brown v. L. H. Bottoms Truck Lines, 227 N.C. 299, 42 S.E.2d 71, 75.

(2) It is stipulated in the lease contract that while they are in the service of the Motor Lines, the vehicle and its driver shall be under the exclusive supervision, control, and direction of the lessee. The all-inclusive extent of this right of control is spelled out in the lease in detail. As the Motor Lines has contracted, so is it bound.

In determining whether Roth was an independent contractor or an employee of the Motor Lines, "the vital test is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details." "* * * the retention by the employer of the right to control and direct the manner in which the details of the work are to be executed and what the laborers shall do as the work progresses is decisive, and when this appears it is universally held that the relationship of master and servant or employer and employee is created. " Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137, 140; Brown v. H. L. Bottoms Truck Lines, supra.

It is true that McCord contracted to carry workmen's compensation insurance, but Roth was not a party to that contract and his dependents are not bound by its terms. Furthermore, Roth was at liberty to work for McCord when not actually engaged by the Motor Lines, and the Mc-Cord firm was subject to the Workmen's Compensation Act.

Whether the stipulations in the contract vest in the Motor Lines the right to recover over against McCord the amounts expended by reason of the judgment herein, we need not now say. That question must be presented, if presented at all, to another court in another action.

The plaintiffs' appeal was precautionary. They are entitled to recover from either one or the other group of defendants. They wish to protect their rights in this respect in the event the Court concludes the Motor Lines and its insurance carrier are not liable. Their appeal is dismissed and they will be taxed with the costs of their brief.

As to the Motor Lines and its insurance carrier, the judgment entered is affirmed.