Lloyd v. Jenkins Context Co. , 46 N.C. App. 817 ( 1980 )

266 S.E.2d 35 (1980)

Harold LLOYD, Plaintiff-Employee,
v.
JENKINS CONTEXT COMPANY, Defendant-Employer, and
American Motorists Insurance Company, Defendant-Insurance Carrier.

No. 7910IC128.

Court of Appeals of North Carolina.

May 20, 1980.

McElwee, Hall, McElwee & Cannon by John E. Hall, Wilkesboro, for plaintiff-employee.

Tuggle, Duggins, Meschan, Thornton & Elrod by Richard L. Vanore, Greensboro, for defendant-employer.

WEBB, Judge.

In order to bring himself within the coverage of the Workmen's Compensation Act, the claimant has the burden of proving that the employer-employee relationship existed. The reviewing court is not bound by the finding of this jurisdictional fact by the Industrial Commission. This Court must make its own finding from a consideration of all the evidence in the case. See Lucas v. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976). G.S. 97-2(2) provides:

The term "employee" means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written . . . .

We hold that under this statutory definition, as interpreted by the cases in this jurisdiction, the plaintiff was an employee of defendant Jenkins Context Company at the time of his injury. We consider the following factors to be determinative: (1) the plaintiff was working for an hourly wage and not for a contract price for a completed job; (2) defendant's own witnesses testified a foreman could instruct the plaintiff in how to do the work. The fact that plaintiff was skilled in his job so that he needed very little supervision does not make him an independent contractor; (3) the plaintiff did not have an independent business as a carpenter; (4) the plaintiff worked full-time for Jenkins; (5) the defendant Jenkins apparently had the right to discharge the plaintiff at any time; and (6) there was no evidence that plaintiff had the right to employ people to assist him in the carpentry work without the permission of Jenkins. It is true that Jenkins did not withhold taxes from plaintiff's wages or pay his social security. Plaintiff also did not have to work regular hours. We do not feel these factors are determinative. We also do not believe the plaintiff's characterization of himself as "self-employed" should govern. It is the evidence as to what the relationship was that determines and not what the plaintiff thought it was. We believe the holding in this case is consistent with the definition of the employer-employee relationship as set forth in Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944) and Askew v. Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965).

Affirmed.

ARNOLD and WELLS, JJ., concur.