Odum v. National Oil Co.

CLARKSON, J.

At the close of plaintiff’s evidence and at the close of all the evidence, the defendant in the court below made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions and in this we can see no error.

The evidence on the part of plaintiff was plenary to be submitted to the jury and the evidence sustained the allegations of the complaint. At the conclusion of the reading of the pleadings, the defendant moved the court to dismiss the action on the ground that under the pleadings jurisdiction thereof was with the Industrial Commission under the Workmen’s Compensation Act of North Carolina. In considering said motion, the court was furnished with the findings of fact of the North Carolina Industrial Commission and the judgment based thereon: (The facts are set forth.) “Upon the finding that at the time of his injury on 22 December, 1936, the plaintiff was an independent contractor, and not an employee of the defendant employer, the claim for compensation is denied. . . . Upon all the evidence in this case, the Commission finds as a fact that the plaintiff was an independent contractor at the time he sustained his injury, 22 December, 1936. Compensation is denied and each party will pay its own cost.”

There was no appeal by either party to the finding of fact and denial of compensation on the ground that “plaintiff was an independent contractor,” The opinion was filed on 18 March, 1937. The present action was brought on 18 May, 1937. .In the present case there is no evidence that the parties stood in the relationship of master and servant or employer and employee.

N. C. Code, 1935 (Michie), section 8081 (k), is as follows: “From and after the taking effect of this article every employer and employee, except as herein stated, shall be presumed to have accepted the provisions of this article respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby, unless he shall have given, prior to any accident resulting in injury or death, notice to the contrary in the manner herein provided.” The above section is not applicable to the facts in the present action.

The material questions involved: (1) Where plaintiff, an independent contractor, was injured by the negligence of the defendant, does the Superior Court have jurisdiction of an action brought to recover damages for such injury? Yes. (2) Where plaintiff, an independent contractor, agreed to extend the contract so as to include a “return” at the corner of the building, does such addition to the contract change the relation as an independent contractor when all of said work was under plaintiff’s control, including the furnishing of all necessary labor and material used, and the defendant looked only to the result? No.

There was a conflict in the evidence as to who put up the scaffolding on which plaintiff had to stand to do the work and which fell causing his injury. In the charge of the court below this was left for the jury to determine. Also the question of due care. The court below charged the jury, in part: “The charge in the complaint against the defendant, gentlemen, so far as this first issue is concerned, is that it was guilty of negligence. That is, that it was guilty of failing to exercise due care, that it failed to exercise that degree of care which a man of ordinary prudence would or should exercise under the same or similar circumstances. The care having reference to the building of the scaffold, if it was constructed by the defendant or by its agents, they knowing at the time that it was going to be used by the plaintiff, that he was going to stand upon it while discharging his duties in covering the roof. I charge you that it was the duty of the defendant to use ordinary care in the selection of the material out of which the scaffold was constructed, that is, to use the degree of care which a man of ordinary prudence would use under the same or similar circumstances. And if he fails to do so, that is, if you find that the defendant built the scaffold and failed to exercise that degree of care which it should have exercised under the circumstances, and if such failure on its part was the proximate cause of the injuries received by the plaintiff, then it would be your duty, gentlemen, to answer the first issue ‘Yes.’ If you do not so find, it would be your duty to answer it ‘No.’ Again, in respect to this issue, I charge you, gentlemen, that if the plaintiff has failed to satisfy you by the greater weight of the evidence that the defendant and its agents constructed this scaffold, but, on the other hand, it appears to you that the plaintiff himself built the scaffold, or built that part of it which fell, which gave way and caused him to be injured, then I charge you he cannot recover in this case, because if he undertook to construct the scaffold on which he was going to stand, he being.an independent contractor, according to his own contention, and if he built the scaffold to such an extent that it would not bear his weight, but fell as he stood on it and caused him to fall to the ground and injure his neck, then, gentlemen of the jury, as a matter of common sense, he would be responsible for his own conduct and he could not recover out of the defendant.” The above charge gives a clear and concise statement of the controversy.

George McDaniel testified, in part: “Mr. Messick (Will Messick, agent for defendant) and his crew put the staging up and Mr. Tosto was among them; that the staging he referred to was a part of the same which fell with Mr. Odum; that witness was standing in the open about 30 feet from Mr. Odum and saw him fall. Upon being questioned as to what caused the staging to fall, he stated the barrow that went out from the building and went up the 2x4 broke; that it was weak and seemed to he a knotty piece of wood.”

Alex Tosto testified, in part: “That he put up the staging that fell and was ordered by Mr. Messick to build it; that if Mr. Odum built any part of that staging he didn’t see it; that Mr. Odum did not have anything to do with the part that fell, because it was already up. . . . Witness testified that it Was the cross barrow that broke, explaining that at the north end of the house there was an upright set off from the house and this was held up and attached to the wall of the house by the cross arm or barrow which supported the floor of the staging, and that this barrow broke in two, letting the stage down and precipitating Mr. Odum to the ground.”

Carl Chadwick testified, in part: “That he did not know who put them up; that he did not see Mr. Odum fall, but saw him immediately afterwards and that he examined the staging after Odum fell; that the hoard was weak and the barrow broke, pulling the nails out from the piece that was in the house.”

The defendant "contends that the issue of contributory negligence should have been submitted to the jury. On the evidence the court below refused to submit the issue for lack of evidence, and in this we think the court was correct.

The defendant’s prayers for instructions were not given in the language prayed for, but, taking the charge as a whole, the law applicable to the facts were fully given by the court below, and the refusal was not prejudicial.

We see no prejudicial error in the admission of evidence complained of by defendant, nor as to the charge of the court below as to damages. The case is mainly one of disputed facts, and the charge, free from error, left the facts for determination by the jury. They found for plaintiff and, on the whole record, we find no prejudicial or reversible error.

No error.

Sea well, I., took no part in the consideration or decision of this case.