Suggs v. Williamson Truck Lines , 253 N.C. 148 ( 1960 )

116 S.E.2d 359 (1960) 253 N.C. 148

James L. SUGGS, Employee,
v.
WILLIAMSON TRUCK LINES, Employer, Bituminous Casualty Corp., Carrier, and Mercury Motor Express, Inc., Employer, American Fidelity & Casualty Co., Carrier.

No. 243.

Supreme Court of North Carolina.

October 12, 1960.

John Webb, Wilson, for plaintiff appellant.

Uzzell & DuMont, J. William Russell, Asheville, for defendant appellees Williamson Truck Lines and Bituminous Cas. Corp.

Douglass & McMillan, Clyde A. Douglass, II, Raleigh, for defendant appellees Mercury Motor Express, Inc., and Fidelity and Casualty Co.

DENNY, Justice.

In the hearing below the plaintiff excepted only to the findings of fact, conclusions of law, and the signing of the judgment, in his notice of appeal to this Court.

The plaintiff, however, concedes in his brief that the findings of fact are supported by the evidence. But he contends that the conclusions of law are not supported by the findings of fact. Therefore, we have before us nothing more than an exception to the judgment. Such an exception presents only these questions: (1) Do the facts found support the judgment and (2) does any error of law appear upon the face of the record? City of Goldsboro v. Atlantic Coast Line R. Co., 246 N.C. 101, 97 S.E.2d 486; Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592; Gibson v. Central Mfrs' Mut. Ins. Co., 232 N.C. 712, 62 S.E.2d 320.

We think the plaintiff's assignment of error raises these questions only: (1) Did the North Carolina Industrial Commission have jurisdiction of the defendant Mercury Motor Express, Inc. and its insurance carrier, thereby giving it power to award compensation to the plaintiff against said defendants pursuant to the provisions of our Workmen's Compensation Act? (2) Did the relationship of employer-employee exist between the plaintiff and the Williamson Truck Lines at the time the plaintiff was injured?

In our opinion, both questions must be answered in the negative.

G.S. § 97-36, in pertinent part, reads as follows: "Where an accident happens while the employee is employed elsewhere than in this State which would entitle him or his dependents to compensation if it had happened in this State, the employee or his dependents shall be entitled to compensation, if the contract of employment was made in this State, if the employer's place of business is in this State, and if the residence of the employee is in this State * * *."

It is clearly apparent from the language of G.S. § 97-36 that, before the jurisdiction of the North Carolina Industrial Commission attaches in a case where the accident occurs elsewhere than in this State, there must be a concurrence of all the above-mentioned prerequisites, and we so held in Reaves v. Earle-Chesterfield Mill Co., 216 N.C. 462, 5 S.E.2d 305, 306, where Seawell, J., speaking for the Court, said: "In so far as it depends upon the statute (G.S. 97-36) alone, the jurisdiction of the Industrial Commission attaches only (a) if the contract of employment was made in this State; (b) if the employer's place of business is in this State, and (c) if the residence of the employee is in this State. All these circumstances must combine to give jurisdiction."

The contract involved herein between Mercury Motor Express, Inc. and the Williamson Truck Lines was executed in the City of Elizabeth, State of New Jersey; the Mercury Motor Express, Inc., is a Florida corporation, and there is no evidence tending to show that such corporation is domesticated in this State or that it maintains any terminal or place of business in North Carolina. Therefore, we hold that the court below was without error in affirming the action of the North Carolina Industrial Commission in its affirmance of the dismissal of Mercury Motor Express, Inc., and its insurance carrier, American Fidelity and Casualty Company, for lack of jurisdiction.

In answering the second question posed, we must determine whether the relationship of employer-employee existed between the plaintiff and Williamson Truck Lines at the time plaintiff was injured.

It was provided in the trip lease agreement that the "Lessee * * * agrees during the term of this agreement, to assume full responsibility for the operation of such motor vehicle(s)."

The deputy hearing commissioner found as a fact that at the time the plaintiff was injured the leased equipment was being driven by the plaintiff under the direction and control of Mercury Motor Express, Inc., with Mercury's I. C. C. plates attached thereto, and that Williamson Truck Lines had no control over Jones or the plaintiff during the course of the lease trip from Elizabeth, New Jersey, to Orlando, Florida.

We have held that when an interstate franchise carrier executes a lease or contract by which its equipment is augmented and used as one of its fleet of trucks under its franchise and with its license plates attached thereto, the holder of the franchise is responsible for the operation of the truck in so far as third parties are concerned. Brown v. Bottoms Truck Lines, 227 N.C. 299, 42 S.E.2d 71; Wood v. Miller, 226 N.C. 567, 39 S.E.2d 608.

We have likewise held that the franchise carrier in such cases is also liable to the driver of such truck for any injury that may arise out of and in the course of his employment within the purview of our Workmen's Compensation Act, and that the driver of such leased vehicle is not bound by any provisions in the lease to the contrary. Brown v. Bottoms Truck Lines, supra; Roth v. McCord & Dellinger, 232 N.C. 678, 62 S.E.2d 64; Newsome v. Surratt, 237 N.C. 297, 74 S.E.2d 732; McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438; Peterson v. McLean Trucking Co., 248 N.C. 439, 103 S.E.2d 479.

The plaintiff contends that the opinion of this Court in Roth v. McCord & Dellinger, supra, recognized the fact that the plaintiffs were entitled to recover from either one or the other group of defendants.

In the Roth case, McCord & Dellinger, hereinafter referred to as McCord, owned a tractor which they leased to Central Motor Lines, hereinafter referred to as Motor Lines. The Motor Lines was, but McCord was not, a common carrier of freight under franchise from the Interstate Commerce Commission within the area involved. The McCord firm was subject to our Workmen's Compensation Act.

McCord leased the tractor to the Motor Lines and furnished Roth as driver. The tractor was attached to a trailer belonging to the Motor Lines and was being used on a trip from Charlotte, North Carolina, to Lodi, New Jersey, with a cargo of Cannon Mills products being transported by the Motor Lines under its Interstate Commerce Commission franchise. The Motor Lines' Interstate Commerce Commission identification plate was attached to the vehicle and Roth was operating the same. The truck and trailer ran off the side of a bridge near Clover, Virginia, and Roth was killed.

The North Carolina Industrial Commission found that Roth, at the time of his injury and death, was an employee of the Motor Lines within the meaning of our Workmen's Compensation Act and made an award against it and its insurance carrier. They appealed to the Superior Court. The court below affirmed and the Motor Lines and its insurance carrier appealed to this Court. The plaintiff also appealed. This Court, speaking through Barnhill, J., later C. J., said "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. (The lessors, the lessee and its insurance carrier, were parties defendant.) 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. 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 it is bound." [232 N.C. 678, 62 S.E.2d 66]

It is true that ordinarily Jones was the driver for Williamson Truck Lines and the plaintiff was used from time to time as a driver for this firm. But the test is this: For whom was the plaintiff working as an employee at the time of the accident? The Commission settled that question when it found as a fact that the plaintiff sustained an injury by accident arising out of and in the course of his employment with Mercury Motor Express, Inc.

In the Roth case, this Court further said: "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."

We do not interpret the Roth case to hold, as the plaintiff contends, that under that decision the plaintiff has the right to elect and determine from which group of defendants recovery is to be had. Neither does the fact that our Industrial Commission did not have jurisdiction over the defendant Mercury Motor Express, Inc. and its carrier, enlarge or change in any respect the plaintiff's rights against Williamson Truck Lines.

Unless the lapse of time has barred the plaintiff's claim against Mercury Motor Express, Inc., we know of no reason why he may not press his claim against that corporation in the proper forum.

In view of the conclusions we have reached and the authorities cited herein, we are constrained to uphold the judgment entered in the court below.

Affirmed.