{ "id": 8567631, "name": "OLA BLANTON LUCAS, Widow of LEONARD M. LUCAS, Deceased Employee v. LI'L GENERAL STORES, a Division of General Host Corporation, Employer; and LIBERTY MUTUAL INSURANCE COMPANY, Carrier", "name_abbreviation": "Lucas v. Li'l General Stores", "decision_date": "1976-01-29", "docket_number": "No. 14", "first_page": "212", "last_page": "222", "citations": [ { "type": "official", "cite": "289 N.C. 212" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "212 S.E. 2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "25 N.C. App. 190", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551996 ], "opinion_index": -1, "case_paths": [ "/nc-app/25/0190-01" ] }, { "cite": "61 S.E. 2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606662 ], "opinion_index": 0, "case_paths": [ "/nc/232/0489-01" ] }, { "cite": "101 S.E. 208", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "178 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273405 ], "opinion_index": 0, "case_paths": [ "/nc/178/0595-01" ] }, { "cite": "69 S.E. 2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622722 ], "opinion_index": 0, "case_paths": [ "/nc/235/0237-01" ] }, { "cite": "84 S.E. 1032", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "168 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662047 ], "opinion_index": 0, "case_paths": [ "/nc/168/0632-01" ] }, { "cite": "140 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572714 ], "opinion_index": 0, "case_paths": [ "/nc/263/0718-01" ] }, { "cite": "209 S.E. 2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "286 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563251 ], "opinion_index": 0, "case_paths": [ "/nc/286/0024-01" ] }, { "cite": "174 S.E. 413", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "206 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631372 ], "opinion_index": 0, "case_paths": [ "/nc/206/0523-01" ] }, { "cite": "59 S.E. 2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596404 ], "opinion_index": 0, "case_paths": [ "/nc/232/0162-01" ] }, { "cite": "173 S.E. 603", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "206 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629456 ], "opinion_index": 0, "case_paths": [ "/nc/206/0206-01" ] }, { "cite": "29 S.E. 2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594820 ], "opinion_index": 0, "case_paths": [ "/nc/224/0011-01" ] }, { "cite": "139 S.E. 2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569779 ], "opinion_index": 0, "case_paths": [ "/nc/263/0295-01" ] }, { "cite": "141 S.E. 2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571898, 8571940 ], "opinion_index": 0, "case_paths": [ "/nc/264/0168-01", "/nc/264/0168-02" ] }, { "cite": "148 S.E. 2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "267 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559322 ], "opinion_index": 0, "case_paths": [ "/nc/267/0364-01" ] } ], "analysis": { "cardinality": 888, "char_count": 24208, "ocr_confidence": 0.659, "pagerank": { "raw": 1.1116549774147238e-06, "percentile": 0.9858285174154942 }, "sha256": "5178f7f99e55a0046212565163c4e1db852d05660417a5940d79ac8af791902a", "simhash": "1:90944012260a86de", "word_count": 4251 }, "last_updated": "2023-07-14T21:21:01.191113+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "OLA BLANTON LUCAS, Widow of LEONARD M. LUCAS, Deceased Employee v. LI\u2019L GENERAL STORES, a Division of General Host Corporation, Employer; and LIBERTY MUTUAL INSURANCE COMPANY, Carrier" ], "opinions": [ { "text": "LAKE, Justice.\nIt is well settled that to be entitled to maintain a proceeding for compensation under the Workmen\u2019s Compensation Act the claimant must have been an employee of the alleged employer at the time of his injury, or, in case of a claim for death benefits, the deceased must have been such an employee when injured. Hicks v. Guilford County, 267 N.C. 364, 148 S.E. 2d 240; Askew v. Tire Co., 264 N.C. 168, 141 S.E. 2d 280; Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E. 2d 645; Hayes v. Eton College, 224 N.C. 11, 29 S.E. 2d 137. Otherwise, the Act simply has no application to the claim. Thus, the existence of the employer-employee relationship at the time of the accident is a jurisdictional fact. Notwithstanding G.S. 97-86, the finding of a jurisdictional fact by the Industrial Commission is not conclusive upon appeal even though there be evidence in the record to support such finding. The reviewing court has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record. Hicks v. Guilford County, supra; Askew v. Tire Co., supra; Richards v. Nationwide Homes, supra. The claimant has the burden of proof that the employer-employee relation existed at the time the injury by accident occurred.\nThe Workmen\u2019s Compensation Act, in G.S. 97-2(2), defines the term \u201cemployee,\u201d as used in the Act, as follows:\n\u201cThe term \u2018employee\u2019 means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of trade, business, profession or occupation of his employer * *\nThis statutory definition adds nothing to the common law meaning of the term. Hayes v. Elon College, supra. As Chief Justice Stacy, speaking for the Court, said in Hollowell v. Department of Conservation and Development, 206 N.C. 206, 173 S.E. 603, \u201cAn employee is one who works for another for wages or salary, and the right to demand pay for his services from his employer would seem to be essential to his right to receive compensation under the Workmen\u2019s Compensation Act, in case of injury sustained by accident arising out of and in the course of his employment.\u201d Whether this relationship existed at the time of the injury by accident is to be determined by the application of the ordinary common law tests. Richards v. Nationwide Homes, supra; Scott v. Lumber Co., 232 N.C. 162, 59 S.E. 2d 425; Hollowell v. Department of Conservation and Development, supra.\nIn the present case, the Court of Appeals said: \u201cWe find * * * that decedent was not an \u2018employee\u2019 within the meaning of the Workmen\u2019s Compensation Act. There being no employer-employee relationship, the Industrial Commission could not take cognizance of the claim. The order granting plaintiff\u2019s claim is reversed.\u201d Having reviewed the entire record, we concur in this finding and conclusion of the Court of Appeals.\nIt is clear from the evidence that had Mr. Lucas not been injured in the robbery, he would have had no enforceable claim against Li\u2019l General Stores for compensation for any services rendered by him at the Carolina Avenue store during the week of the robbery. \u201cOne who voluntarily assists a servant at the latter\u2019s request does not, as a general rule, become the servant of the master so as to impose upon the latter, the duties and liabilities of a master toward such volunteer, or so as to render the master liable to third persons injured by such volunteer\u2019s acts or negligence, while rendering such assistance.\u201d Reaves v. Power Co., 206 N.C. 523, 174 S.E. 413.\nIt is undisputed that Mr. Lucas was discharged by Li\u2019l General Stores because he sold beer to a minor in violation of the law of North Carolina and of the policy of Li\u2019l General Stores. Having been employed as Manager of the store at which he was shot, he was familiar with the organization of the company and the limits of the authority of his wife who had succeeded him as Acting Manager of this store.\nThere is evidence that Mr. Lucas was frequently in the store after his discharge and, while there, did various things to assist his wife in her work. This is entirely consistent with the desire of an unemployed husband to be in the company of his wife at her place of employment, such association not being calculated to disturb her in her work, and to assist her in the performance of her duties, especially where, as here, the wife would otherwise be working alone at night in a location attractive to armed robbers. Even if the claimant\u2019s evidence be viewed in the light most favorable to her contention and the evidence for the company be disregarded, the claimant\u2019s evidence fails to show the existence of the employer-employee relation between the company and Mr. Lucas. At most, it would support a finding that the claimant, the District Manager, and Mr. Lucas were in collusion to deceive the company with reference to the fact of Mr. Lucas\u2019 working at the store.\nThe testimony of the District Manager is that he knew nothing about this and did not authorize it or consent thereto. His testimony is corroborated by the testimony of other witnesses. At the time of his testimony, he had already voluntarily given notice of his own resignation from the employment of the company, so his own employment would not have been placed in jeopardy by his admission that he knew of and acquiesced in the alleged employment of Mr. Lucas prior to and at the time of the injury.\nThe evidence is clear and uncontradicted that the District Manager had no actual authority to re-employ Mr. Lucas after the latter\u2019s discharge, or to authorize Mrs. Lucas, the Acting Manager of the local store, to do so. It is true that a principal, who has clothed his agent with apparent authority to contract in behalf of the principal, is bound by a contract made by such agent, within the scope of such apparent authority, with a third person who dealt with the agent in good faith, in the exercise of reasonable prudence and without notice of limitations placed by the principal upon the agent\u2019s authority. Zimmerman v. Hogg and Allen, 286 N.C. 24, 209 S.E. 2d 795; Research Corp. v. Hardware Co., 263 N.C. 718, 140 S.E. 2d 416; Powell v. Lumber Co., 168 N.C. 632, 84 S.E. 1032. This rule, however, has no application where, as here, the third party, when dealing with the agent, knew or in the exercise of reasonable care should have known that the agent was not authorized to enter into the contract. Zimmerman v. Hogg and Allen, supra; Commercial Solvents v. Johnson, 235 N.C. 237, 69 S.E. 2d 716; R. R. v. Smitherman, 178 N.C. 595, 101 S.E. 208.\nIn discussing the liability of a principal upon a contract entered into by an agent within the latter\u2019s apparent authority, Justice Walker, speaking for the Court in R. R. v. Smitherman, supra, said:\n\u201cThe apparent authority, so far as third persons are concerned, is the real authority, and when a third person has ascertained the apparent authority with which the principal has clothed the agent, he is under no further obligation to inquire into the agent\u2019s actual authority. The authority must, however, have been actually apparent to the third person, who, in order to avail himself of rights thereunder, must have dealt with the agent in reliance thereon, in good faith, and in the exercise of reasonable prudence, in which case the principal will be bound by acts of the agent performed in the usual and customary mode of doing such business, although he may. have acted in violation of private instructions, for such acts are within the apparent scope of his authority. An agent cannot, however, enlarge the actual authority of his own acts without some measure of assent or acquiescence on the part of his principal, whose rights and liabilities as to third persons are not affected by any apparent authority which his agent has conferred upon himself simply by his own representations, express or implied.\u201d\nIn Texas Co. v. Stone, 232 N.C. 489, 61 S.E. 2d 348, Chief Justice Stacy, speaking for the Court, said, \u201cOne dealing with an agent or representative with known limited authority can acquire no rights against the principal when the agent or representative acts beyond his authority or exceeds the apparent scope thereof.\u201d In the Restatement of the Law of Agency, 2d, \u00a7 166, it is said, \u201cA person with notice of a limitation of an agent\u2019s authority cannot subject the principal to liability upon a transaction with the agent if he should know that the agent is acting improperly.\u201d Comment (a) upon this section of the Restatement reads: \u201cIf a person has information which would lead a reasonable man to believe that the agent is violating the orders of the principal or that the principal would not wish the agent to act under the circumstances known to the agent, he cannot subject the principal to liability. Any substantial departure by the agent from the usual methods of conducting business is ordinarily sufficient warning of lack of authorization.\u201d In 2A CJS, Agency, \u00a7 166, it is said, \u201cAny apparent authority that might otherwise exist vanishes in the presence of the third person\u2019s knowledge, actual or constructive, of what the agent is, and what he is not empowered to do for his principal.\u201d\nTaking the claimant\u2019s evidence to be true and disregarding the contrary testimony of the District Manager, it shows that Mrs. Lucas, herself, had, at least, substantial doubt concerning the authority of the District Manager to authorize the re-employment of her husband, for she testified that she asked the District Manager, \u201cWell, what about Mr. Pepper and them [his superiors] ?\u201d To this, she testified, the District Manager replied, \u201cWhat they don\u2019t know won\u2019t hurt them.\u201d According to her testimony, denied by the District Manager, their plan was to \u201crun his [Mr. Lucas\u2019] pay through [Mrs. Lucas\u2019] check.\u201d That is, the plan was designed to conceal from the company\u2019s officials the fact that Mr. Lucas was working at the store and to prepare the payroll so as to make it appear that Mrs. Lucas alone was working, she to divide the pay check with him. This circumstance alone is sufficient to put both Mrs. Lucas and Mr. Lucas upon notice that the District Manager was acting in excess of his authority when he authorized Mrs. Lucas to re-employ her husband, assuming that he did so.\nUnder these circumstances, we think the conclusion is inescapable that there was no contract between Li\u2019l General Stores and Mr. Lucas re-establishing the relation of employer and employee between them. Thus, he was not the employee of Li\u2019l General Stores at the time of his injury and the Industrial Commission should have dismissed the claim.\nAffirmed.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Basil L. WMtener and Anne M. Lamm for plaintiff.", "Mullen, Holland & Harrell, P.A., by James Mullen for defendants." ], "corrections": "", "head_matter": "OLA BLANTON LUCAS, Widow of LEONARD M. LUCAS, Deceased Employee v. LI\u2019L GENERAL STORES, a Division of General Host Corporation, Employer; and LIBERTY MUTUAL INSURANCE COMPANY, Carrier\nNo. 14\n(Filed 29 January 1976)\n1. Master and Servant \u00a7 49 \u2014 workmen\u2019s compensation \u2014 claimant as employee\nTo be entitled to maintain a proceeding for compensation under the Workmen\u2019s Compensation Act the claimant must have been an employee of the alleged employer at the time of his injury, or, in case of a claim for death benefits, the deceased must have been such an employee when injured; thus, the existence of the employer-employee relationship at the time of the accident is a jurisdictional fact, and the finding of a jurisdictional fact by the Industrial Commission is not conclusive upon appeal even though there be evidence in the record to support such finding.\n2. Master and Servant \u00a7 49 \u2014 workmen\u2019s compensation \u2014 dismissed employee rehired without authority\nDecedent was not an \u201cemployee\u201d within the meaning of the Workmen\u2019s Compensation Act when he was shot and killed during a robbery while he was in defendant\u2019s store near the cash register where decedent had been dismissed as an employee of defendant because he sold beer to a minor, decedent\u2019s wife succeeded him as Acting Manager of the store, decedent\u2019s wife contended that defendant\u2019s District Manager told her that decedent could work in the store, but that decedent would be paid through the wife\u2019s cheek, the District Manager had no authority to allow decedent to work in the store, and both decedent and decedent\u2019s wife knew that the District Manager was acting in excess of his authority when he permitted decedent to work in the store. G.S. 97-2(2).\nOn certiorari to the Court of Appeals to review its decision reported in 25 N.C. App. 190, 212 S.E. 2d 525, reversing an award in favor of the claimant by the North Carolina Industrial Commission.\nOn 26 April 1973, in the course of a robbery of a store in Gastonia owned and operated by Li\u2019l General Stores, Leonard M. Lucas was shot by one of the robbers while in the store near the cash register. As a result of the wound he died the following day. The Industrial Commission found that, at the time of the shooting, he was an employee of Li\u2019l General Stores and that the shooting was an accident arising out of and in the course of his employment. The sole question on this appeal is whether such employment relationship existed at\" the time of the shooting.\nUndisputed Facts\nLi\u2019l General Stores owned and operated five small convenience stores in the Gastonia area and similar stores elsewhere. These were kept open 16 hours a day for seven days a week. From time to time, employees were shifted by the District Manager from one store to another. Due to the size and nature of these stores, they were frequently operated by a single employee, called the Manager. George Shaver, the District Manager, supervised the several stores and assisted the store managers from time to time as needed. Prior to 27 February 1973, Leonard M. Lucas was employed as a store manager. His wife, the claimant, was also an employee of the company, working at times at the Highland Street store and at times at the Carolina Avenue store. On 27 February 1973, Leonard M. Lucas was dismissed from his employment by Li\u2019l General Stores for the reason that he had sold beer to a minor in violation of the laws of North Carolina. By reason of this violation of the law, the license of Li\u2019l General Stores to sell beer was suspended.\nThe Claimant\u2019s Evidence\nAt the time of the robbery, she was employed as Manager at the Carolina Avenue store. George Shaver, the District Manager, was her superior. In the week prior to the shooting, Mrs. Lucas had been working at the Highland Street store. On Sunday prior to the shooting, Shaver gave her the keys to the Carolina Avenue store and told her to open it on Monday morning. On Monday she and her husband went to and opened the store. They worked there until Thursday, 26 April, the day of the shooting. On that date she was not feeling well and about 8:45 p.m. went into a back office room, lay down and went to sleep, leaving her husband out in front at the cash register. While she slept the robbery and shooting occurred.\nWhen Shaver transferred her to the Carolina Avenue store on the preceding Sunday, he had said with reference to Mr. Lucas, \u201cHe can\u2019t work over there but four days a week.\u201d She asked, \u201cWhat about Mr. Pepper and them?\u201d Pepper was the Division Manager of the company, the superior of Shaver. Shaver replied, \u201cWell, what they don\u2019t know won\u2019t hurt them.\u201d With further reference to Mr. Lucas, Shaver said, \u201cI\u2019ll have to run his pay through your check.\u201d\nPrior to the husband\u2019s discharge, Mrs. Lucas had worked at the Carolina Avenue store, of which Mr. Lucas was then manager. She was just \u201chelping out\u201d and does not' know whether she got paid or not. During the week of the robbery, Shaver was in the Carolina Avenue store practically every day and Mr. Lucas was present, frequently \u201crunning the cash register and making the books out and making the deposits at the bank.\u201d Mr. Shaver had told Mr. Lucas to keep the books. On one day during the week of the robbery and shooting, Mrs. Lucas, with Shaver\u2019s knowledge, went to Columbia, South Carolina, for medical treatment, leaving her husband in charge of the Carolina Avenue store. Shaver told her her husband could stay there and run the store until she returned.\nOut of the check received by her from Li\u2019l General Stores, Mrs. Lucas paid her husband at the rate of $2.00 an hour, her check from the company being for two shifts per day, a total of 16 hours per day. Her husband helped her put up stock, made out the books, made out the bank deposits, carried the deposits to the bank and was the only one who had the combination to the safe. Shaver had handed the combination of the safe to Mr. Lucas when he assigned Mrs. Lucas to manage the Carolina Avenue store on the Monday preceding the shooting on Thursday.\nWhile Mrs. Lucas was working at the Highland Street store, her sister, Mrs. Robinson, helped her on parts of four days. Some of this assistance by the sister was pursuant to the direction of Mr. Shaver and for that work the sister\u2019s pay was \u201crun through\u201d Mrs. Lucas\u2019 check. Other work so done by the sister, at Mrs. Lucas\u2019 request, was paid for by Mrs. Lucas out of her own pay from the company. Mrs. Lucas, herself, did not work for Li\u2019l General stores prior to the time her husband was discharged.\nMr. Shaver told Mrs. Lucas to let Mr. Lucas \u201crun the cash register as long as the ABC law didn\u2019t catch him.\u201d Mrs. Lucas \u201cworked from seven in the morning till * * * eleven at night, 16 hours a day, two shifts\u201d at the store on Highland Street before her transfer back to the Carolina Avenue store. Mrs. Lucas never kept the books at the Carolina Avenue store. Shaver came to the store and saw Mr. Lucas working. He did not forbid him to do so or tell Mrs. Lucas to \u201cget him off the premises.\u201d\nMrs. McDaid, a witness for the claimant, testified that a few minutes before Mr. Lucas was shot, she and her son stopped at the Carolina Avenue store, the son went into the store and purchased a bottled drink from Mr. Lucas. On other occasions in the same week, she observed Mr. Lucas at the cash register, Mrs. Lucas being also in the store on some of these occasions.\nOther witnesses for the claimant testified that they had observed both Mr. Lucas and Mrs. Lucas at the Carolina Avenue store. Some of these observed Mr. Lucas putting up stock and others were waited on by Mr. Lucas as customers of the store.\nThe Defendants\u2019 Evidence\nGeorge Shaver, District Manager of the Li\u2019l General Stores in the Gastonia area, testified that Mrs. Lucas, or anyone else, could work 16 hours a day at the Carolina Avenue store because there was no real work in running this store, it didn\u2019t require two people at any one time and all one had to do was \u201cjust set there.\u201d Mr. Lucas was not employed to work at the store by Shaver, or by anyone acting with Shaver\u2019s authority, at the time of the shooting. He was discharged on 27 February 1973 for selling alcoholic beverages to a minor. The personnel transaction sheet on the company form, signed by Shaver, stated Mr. Lucas was \u201cdischarged for misconduct by violating Company rules.\u201d This paper was signed by Shaver and by his superior, Jacobson, Division Manager of the company. Mrs. Lucas was then acting as assistant manager of that store (Highland Street store) and, upon the discharge of Mr. Lucas, she was put in charge of that store.\nThereafter, Shaver told Mr. Lucas on several occasions that he was not allowed in the company stores, this being against company policy since he was no longer employed by the company. Shaver was usually at the store under his supervision every day and he saw Mr. Lucas in the store \u201ca number of times.\u201d Shaver told Mrs. Lucas that Mr. Lucas was not allowed in there and never mentioned anything to her about allowing Mr. Lucas to \u201cmake up the books,\u201d since Shaver, himself, kept the books from data supplied to him by Mrs. Lucas. Shaver \u201ccleared\u201d the cash register and kept the books himself at that store because Mrs. Lucas was not capable of doing so.\nMrs. Lucas had no authority to hire Mr. Lucas or anyone else to stay in the store with her, or to be her assistant. Shaver, himself, did not have any authority to authorize Mrs. Lucas to do so. To have Mr. Lucas around the store \u201ccould have endangered the continuation of the beer license\u201d of the store, in the opinion of Shaver. While Mrs. Lucas was working at the Highland Street store, Shaver spoke to her a few times about Mr. Lucas \u201ccoming about the premises.\u201d He never authorized her to continue to let her husband \u201ccome about the premises and do some work.\u201d Shaver knew nothing of any plan for Mrs. Lucas to use part of her pay check to compensate Mr. Lucas for work done by him at the store. He had no conversation with Mrs. Lucas concerning any payment to her sister in this manner. When Mrs. Lucas wasn\u2019t working, Shaver knew \u201cwho was in her place\u201d and whenever she was not at the store he was \u201cor someone else would be there.\u201d Shaver at no time made any arrangements for Mr. Lucas to return to work at the store and did not at any time agree to his working about the store to assist Mrs. Lucas. She asked Shaver if she could bring her husband to the store to help her and his response was that Mr. Lucas was not allowed in the store to work for fear that if he was allowed to do so, the company would lose its beer license for all five of its stores.\nThere were frequent occasions when Shaver operated the Carolina Avenue store with just one employee for as much as two or three weeks. Anyone can come into the store who wants to, and if Mr. Lucas was in the store during the week of the shooting, he was \u201cjust hanging around\u201d and talking to his wife. At no time after Mr. Lucas was discharged did Shaver see Mr. Lucas carrying out any duties of an employee in any of the company\u2019s stores by waiting on customers, ringing up sales, putting up stock, keeping books or otherwise. None of these things was done by Mr. Lucas with Shaver\u2019s authority. Mrs. Lucas had no authority to make any contract of employment with her husband. Shaver gave the safe combination at the Carolina Avenue store to Mrs. Lucas, saying, \u201cProbably Mr. Lucas still knows the combination; I don\u2019t know if he does or not.\u201d\nAt the time of his testimony, Shaver had already given Li\u2019l General Stores notice of his intent to terminate his own employment by the company, so his continued employment did not depend upon his testimony in this proceeding.\nMyron E. Jacobson, Assistant Division Manager of Li\u2019l General Stores, testified that Shaver, his subordinate, did not have any authority to put Mr. Lucas back on the payroll of the company after his discharge, or to authorize Mrs. Lucas to do so, and never discussed this with Jacobson. Mrs. Lucas had no such authority.\nSusan Hambrick testified that when Mr. Lucas was discharged Shaver employed her to operate the Highland Street store for one shift, Mrs. Lucas handling the other shift, and instructed her not to have Mr. Lucas in the store. On one occasion, when Mrs. Hambrick had to go to see her doctor, Shaver told her to have Mrs. Lucas come in and work. Mrs. Lucas asked if Shaver would object if Mr. Lucas came to the store and stayed with her. Thereupon, Mrs. Hambrick telephoned Shaver, who replied that Mr. Lucas could not do so. She gave that message to Mrs. Lucas. On occasion, when no one else was available, Mrs. Hambrick has worked consecutive shifts, 16 hours a day, seven days a week, without help.\nBob Craig Gibson, Manager of the Highland Street store when Mrs. Lucas was working there, overheard a conversation between Shaver and Mrs. Lucas with reference to Mrs. Lucas\u2019 allowing her husband to work. Shaver then told Mrs. Lucas to keep Mr. Lucas out of the store because it was against company-policy for him to be in it. Mr. Gibson told Mr. Lucas the same thing and Mr. Lucas knew it. On occasion, Mr. Gibson has worked 16 hours a day for seven days a week. The book work takes him about 30 minutes a day. He can do it and also wait on customers.\nBasil L. WMtener and Anne M. Lamm for plaintiff.\nMullen, Holland & Harrell, P.A., by James Mullen for defendants." }, "file_name": "0212-01", "first_page_order": 232, "last_page_order": 242 }