Youngblood v. North State Ford Truck Sales

PHILLIPS, Judge.

The only question presented by this appeal is whether within the contemplation of our Workers’ Compensation Act plaintiff was an employee of defendant North State Ford Truck Sales when the accident happened. This being a jurisdictional question, G.S. 97-2, the facts found by the Industrial Commission, though supported by competent evidence, are not binding upon us. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E. 2d 280 (1965). Nevertheless, after reviewing all the evidence recorded we adopt the findings of fact made by the Full Commission and conclude as it did that plaintiff was defendant North State Ford’s employee at the time involved.

The dominant factor in determining whether a hired hand is an employee or an independent contractor is the employer’s authority to control how the person hired accomplishes the task to *39be done; and if that right to control exists it makes no difference that it is not exercised. Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E. 2d 137 (1944); Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591 (1930); Beal v. Champion Fiber Co., 154 N.C. 147, 69 S.E. 834 (1910). Here, as the evidence and findings show, supervisory authority was both retained and exercised by North State Ford. Plaintiff was told when to begin and stop work and when to break for lunch; he was told which trucks to use in instructing defendant’s trainees, and to begin “hands-on” training at a certain point. That defendant’s employees were not skilled Kansas Jack equipment operators and thus could not control the technical details of plaintiffs work is neither material nor unusual; as it is a rare employer today that does not employ one or more persons to operate computers, word processors and other machines that are beyond his ken. The control that is most significant is the ultimate control of hiring and firing, and under the employment agreement North State had the right to discharge plaintiff at any time, since the instruction period could be terminated any time North State thought that the trainees’ progress or lack of progress justified. And plaintiffs manner of compensation was similar to that of North State’s other employees as they were paid for the hours worked and plaintiff was paid for the days worked. Durham v. McLamb, 59 N.C. App. 165, 296 S.E. 2d 3 (1982). It is also significant, we think, that although plaintiff was engaged in several commercial activities — selling Kansas Jack equipment, selling furniture, and selling electronic equipment — he was not engaged in the independent business of instructing in the use of Kansas Jack equipment; and it was while instructing defendant’s mechanics at defendant’s plant, for the benefit of defendant’s business, that he was injured. Defendant’s several arguments are all answered by the findings of fact and answering them again would serve no purpose.

Affirmed.

Judge COZORT concurs. Judge Greene dissents.