Garrett v. Garrett & Garrett Farms ( 1978 )

249 S.E.2d 808 (1978) 39 N.C. App. 210

Philip M. GARRETT, Plaintiff,
v.
GARRETT & GARRETT FARMS, Employer,
North Carolina Farm Bureau Mutual Insurance Company, Carrier, Defendants.

No. 7810IC169.

Court of Appeals of North Carolina.

December 19, 1978.

LeRoy, Wells, Shaw, Hornthal, Riley & Shearin by Roy A. Archbell, Jr. and Norman W. Shearin, Jr., Kitty Hawk, for plaintiff-appellant.

White, Hall, Mullen, Brumsey & Small by Gerald F. White, Elizabeth City, for defendants-appellees.

HARRY C. MARTIN, Judge.

Plaintiff assigns as error the dismissal of the claim for lack of jurisdiction. At the outset, we note that Farm Bureau does not contest that plaintiff was injured by an accident arising out of and in the course of employment. The Commission so found in its finding of fact 7, and Farm Bureau did not except or object. Likewise we note that plaintiff's work was farming, ordinarily exempt from the requirements of the Workmen's Compensation Act. "[A]n employer of . . . farm laborers . . . who has purchased workmen's compensation insurance to cover his compensation liability shall be conclusively presumed . to have accepted the provisions of this Article. . . and his employees shall be so bound . . ." N.C.Gen.Stat. 97-13.

The Commission determined plaintiff was not an employee when injured and dismissed the claim. In this we find error.

In Pearson v. Pearson, Inc., 222 N.C. 69, 21 S.E.2d 879 (1942) plaintiffs' decedent was the president and general manager of a small corporation, who also worked as a salesman and collector of accounts. The insurance carrier's agent told decedent to include his salary in the payroll for the purpose of determining premium. Premiums were paid. Pearson was killed in an accident arising out of his work.

The Court held it did not need to decide the question of whether decedent was an employee within the meaning of the Workmen's Compensation Act, as defendant carrier, by its treatment of him as an employee and accepting the benefits of that status, had recognized his status as an employee to such an extent that it cannot now assert the contrary after loss has been sustained. After treating the claimant as an employee for the purpose of collecting the premium, the company could not, after loss, deny that he was an employee. (Section 2 of Chapter 97 of the General Statutes of North Carolina was amended in 1955, after Pearson, to include executive officers of corporations within the statutory definition of "employee.")

In Aldridge v. Motor Co., 262 N.C. 248, 136 S.E.2d 591 (1964), the Court held that where carrier accepted premium based on claimant's salary, with knowledge, it was estopped to deny his status as an employee.

"The law of estoppel applies in compensation proceedings as in all other cases." Biddix v. Rex Mills, 237 N.C. 660, 665, 75 S.E.2d 777, 781 (1953). The status of claimant as an employee may be established by way of estoppel. Allred v. Woodyards, Inc., 32 N.C.App. 516, 232 S.E.2d 879 (1977); Britt v. Construction Co., 35 N.C. App. 23, 240 S.E.2d 479 (1978); 8 Strong's N.C. Index 3d, Master and Servant § 81, p. 649.

As in Pearson, supra, the Commission was not required to decide the precise question of whether plaintiff could be classified as an employee. Farm Bureau, by their treatment of plaintiff as an employee and accepting the benefits of that status, cannot now be permitted to assert the contrary after loss has been sustained.

The evidence and findings of fact of the Commission support the conclusion that Farm Bureau is estopped from denying plaintiff's status as an employee when injured. We so hold.

The order of the Commission holding plaintiff was not an employee and dismissing plaintiff's claim is reversed.

The case is remanded to the Commission for hearings to determine the award of compensation plaintiff is entitled to receive.

Reversed and remanded.

MORRIS (now Chief Judge) and WEBB, JJ., concur.