Earl Warren: Mr. Hammer, you may proceed.
Henry Hammer: Thank you, sir. Answering your last question Mr. Justice Brennan, it is our contention that the evidence was not only legally sufficient to sustain the owner's proof and pose upon the defendant according to the standards applied by both this Court and the South Carolina Supreme Court.
William J. Brennan, Jr.: Legally insufficient?
Henry Hammer: Legally insufficient, but also that the dismissal of the affirmative defense find support on another ground and probably distinct and apart from the legal insufficiency of the others. For this reason, in respondent's answer, it is alleged that the petitioner's employer of Bouligny Construction Company was operating under the requirements of the South Carolina Workmen's Compensation Act as distinguished from a voluntary election on his part to operate under the Act. And under such circumstances, we submit that Section 72-111 of the South Carolina Workmen's Compensation Act which they seek to invoke now as a basic defense, the petitioner's cause of action, never became operative because the statute was never intended to and never did create any legal liability on the part of the respondent to provide workmen's compensation coverage for the petitioner herein. The statute was intended to apply only to those circumstances where for the protection of employees who are not otherwise entitled to Workmen's Compensation benefits by law which requires their immediate employers to provide workmen's compensation benefits for them.
William J. Brennan, Jr.: (Inaudible)
Henry Hammer: In what --
William J. Brennan, Jr.: (Inaudible)
Henry Hammer: Yes, sir. And it's very important. I express this that the immediate employer didn't come under the Act voluntarily. He was required to come within the operation of the statute. And as stated by the South Carolina Supreme Court in the recent case of Adams versus Davison-Paxon Company and I quote from page 12 on -- in petitioner's reply brief, "The courts said that the Act was intended to apply, to extend the benefits of workmen's compensation to workmen who otherwise would not be entitled to that."
William J. Brennan, Jr.: Was this question raised in the Court of Appeals?
Henry Hammer: Yes, sir. It was -- the Court of Appeals stated that we didn't raise the question in the District Court. But I call to the Court's attention, the -- the Court of Appeals decided the question but I call to the Court -- to the attention of the Court, page 2 of the record where the Court stated, District Judge stated as I started out to say in the very beginning what you are doing now, you are moving that they not be allowed to read that defense before the jury because -- because it is a legal offense."
Speaker: Where is that?
Henry Hammer: Page 2 of the transcript. Page 2 of the transcript of record. The Court stated, "That -- purely a question of law, it must be decided on legal grounds. Is that what you're moving for?” My answer was, “That's the first motion. And secondly, in the event they allowed to read it, they should read only those portions of the answer which are material and would not permit prejudicial matter to come into the case.” So we did raise the question in the District Court. Moreover, in petitioner's brief, answer in the brief, they stated that the motion was made to amend the answer, to include this affirmative defense some several weeks prior to the trial of this case although this case had been pending for quite sometime and we objected to the amendment of this answer, and stated on page 7 of petitioners brief that the petitioner moved to strike the defense. And at -- at approximately the same time the respondent entered a motion to amend the allegations. And of course the motion was granted by the District Judge permitting the amendment. Although the District Judge didn't dismiss the case on that ground we raised the question in the District Court. We also posed the question to the Court of Appeals and they decided the question. The Court of Appeals decided the question adversely to the petitioner. But we contend, as stated by the South Carolina Supreme Court that this Act was intended to apply only to those workmen who are otherwise entitled to the benefits of the Act. The -- otherwise, it would be useless to legislation. Why would the legislature provide a double protection to employees of independent contractor?
William J. Brennan, Jr.: Was that a recent decision on the South Carolina Supreme Court brought to the attention of the Court of Appeals?
Henry Hammer: That case had not been decided at the time of the decision of the Court of Appeals. It had --
William J. Brennan, Jr.: Well, would that suggest that they might take a different view of this in this pleadings if --
Henry Hammer: That's a -- that case very definitely and unequivocally in my mind suggest that the affirmative defense is not proper, not legally -- doesn't constitute a legal defense.
William J. Brennan, Jr.: Well, I'm just wondering whether this Court ought to decide this or that or the Court of Appeals, but in light of that opinion to that decision in South Carolina Court consider the question again.
Henry Hammer: Well, the Court of Appeals was pretty adamant about the decision on that point and they very definitely stated that the -- our contention was hopefully without merit and I think this Court should decide it. I have no question about the fact that this Court should decide it.
William J. Brennan, Jr.: Incidentally, alternatively, did you raise in the Court of Appeals that if they disagreed with you on the sufficiency of the evidence to support the affirmative defense that at least there should be a remand for a --
Henry Hammer: We did that in a petition for a rehearing. We had no idea that the Court would go as far as it did and then when we first learned of the situation --
William J. Brennan, Jr.: Is your petition for rehearing here?
Henry Hammer: Yes, sir. Petition for rehearing is part of the appendix, a part of the transcripts of records.
Speaker: Mr. Hammer, is the case to wit, the recent case of South Carolina to which you made reference in your brief?
Henry Hammer: Yes, sir. It's cited at the -- the pertinent language is cited on page 12 of the reply brief for petitioner, that's the blue brief. But I submit this, the whole otherwise, this statute, this section would extend the application of the Act beyond its clear and expressed purpose and it would serve not for the protection of the employees but would serve for the protection of owners to the detriment of the employees and would permit owners to absolve themselves from liability because under circumstances where no possible valid reason exist for such immunity. We submit on that ground the affirmative defense should have been dismissed. Now, adverting now to the factual questions in this case for the lack of evidence to support, even the theory of defense pursued by the respondent, it appears that the petitioner brought this action in the District Court of the United States for the Western District of South Carolina against respondent Blue Ridge Rural Electric Cooperative by and CA South Carolina Corporation engaged in the business of supplying electricity to recover damages for its negligence in causing and permitting electric current to run into a substation. In the process of construction an uncompleted steel structures, steel and concrete structure, in the process of construction upon which the petitioner Byrd was working, resulting in the lost and amputation of the forearms of the petitioner who incidentally at that time was 24 years of age, married, father of two children, and had an earning capacity of approximately $5000 per year. At the time of his injuries, this petitioner was working as an employee of Bouligny Construction Company, an independent contracting construction firm, a cooperation of North Carolina which was engaged on a written contract to construct a large project in South Carolina including the substation involved herein at a cost to respondent of approximately $334,000. And on the project, they employed approximately 50 men. And as I've stated, the respondent, several weeks prior to the trial of the case, amended it's affirmative defense to allege that the work of constructing substations being performed by the independent contractor was part of the respondent's business and hence it alleged that under Section 72-111 of the Workmen's Compensation Act Department provision involved herein, the petitioner could have brought an action. Under the Compensation Act to recover benefits and therefore his present action at common-law was bought. And in order to establish this defense, the respondent sought to establish this defense solely by evidence. That is direct employees ordinarily and appropriately performed the work of constructing substations. And it sought to establish this evidence by the sole testimony of respondent's manager, A.J. (Inaudible) who on depositions prior to trial professed to have little, if any, knowledge concerning the work performed by the employees of the respondent company or the nature of the work involved in the construction of a substation. Notwithstanding, at the trial of his case, he took the stand and testified on direct examination unequivocally that the respondent had six substations and constructed with its own employees and facilities three of the substations and that the last of these three substations was constructed at Liberty, South Carolina three years prior to petitioner's injuries with respondents direct employees and facilities. However, the following day when he was recalled to the stand for further cross-examination and confronted with telegraphic -- confronted with telegrams from independent contractors who had actually constructed subs -- the substations which he was talking about. He changed, corrected, recanted, and repudiated his testimony of the prior day by stating that the respondent did not construct with its own facilities and employees the substation built at Liberty, South Carolina three years prior for petitioner's injuries and finally admitted that the respondent didn't construct with its own employees and facilities any of its substations. Other than this testimony the record is void of evidence that the respondent's direct employees performed such work to support respondent's theory of defense. Moreover, as pointed out by the South Carolina Supreme Court in the case of Miles versus West Virginia Pulp and Paper Company cited in our brief, it is a necessary prerequisite to the application of this section that the subject matter of the work being performed by the independent contractor be owned by the owner at the time of the employee's injuries. In the instant case, the record clearly shows that the substation was neither owned, possessed, nor controlled, nor in use, nor in operation as an integral part of respondent's business at the time of the petitioner's injuries. Therefore, adverting to our first question involved --
Speaker: (Inaudible)
Henry Hammer: Yes, sir.
Speaker: (Inaudible)
Henry Hammer: Yes, sir. The very instrumentality, the substation was neither owned, possessed, nor controlled by the respondent. It would, under the contract, awarded to the independent contractor he had exclusive possession and control of the work subject of course to the inspection, test and approval by another independent contractor, not an independent contracting engineering firm which supervised the work.
Speaker: (Inaudible)
Henry Hammer: On their premises, yes sir, on the premises. We submit therefore that according to our first question involved that the reversal by the court below was clearly erroneous and we rest our contention upon the record in this case and the decision of this Court in Galloway versus United States, 319 U.S. 372 where in this Court at pages 379 and 380, in testing the legal sufficiency of the evidence of a party having the burden of proof, applied the standard of refusing to give legal efficacy or probative value to the testimony of a witness who changes, corrects, recants and repudiates his testimony on the witness stand. A standard which has been followed by the South Carolina Supreme Court in the line of decisions cited in our brief and which had forward spaces that properly and only administration of justice to discourage the giving of false testimony. We also rely upon the principle enunciated on a principle flowing from the application of this standard as enunciated by this Court in the Galloway case and I quote, "That mere speculation may not be allowed to do duly for probative facts after making due allowance for all -- all reasonably possible emphasis favoring a party whose case is attacked." And judged by the foregoing standard and the principle flowing from the application of this standards, we submit that there's no substantial evidence of record in this case upon which a finding of favor of respondent's affirmative defense can be based upon the theory of the defense pursued by the respondent in the court below.
William J. Brennan, Jr.: But Mr. Hammer, may I get back just a moment to the other question we were talking about. I noticed that in the Court of Appeals' opinion, this is it say, "In consequence, both the owner and the contractors whom he engages to do his work are subjected to the requirements of the Act and the workers receive double protection." Now, is that what you say is contrary to the recent holding of the South Carolina's Supreme Court in the Adams case?
Henry Hammer: That's correct. In the Adams case, the Court very purportedly said, "The purpose of the statute is to extend the benefits of Workmen's Compensation to workmen who otherwise would not be entitled to them by law."
William J. Brennan, Jr.: So that this is a flatly erroneous statement of South Carolina law --
Henry Hammer: Yes, Your Honor,
William J. Brennan, Jr.: -- as stated in the Adams case, is that it?
Henry Hammer: That's correct. Now, I do want to point out to the Court and I want to make myself clear that if the independent contractor had kept -- come into the Act voluntarily, of course this section would apply provided the other provisions would have to fall, under the Adams case.
William J. Brennan, Jr.: Well, were -- you -- your point is that this petitioner's employer was not voluntarily under the South Carolina Act --
Henry Hammer: That's correct.
William J. Brennan, Jr.: -- but required to be.
Henry Hammer: Exactly.
William J. Brennan, Jr.: Now where -- where do -- where does the fact in that regard appear?
Henry Hammer: Appears in the answer filed in the court below in the District Court, paragraph six, page b of the transcript of record which says --
Speaker: On what page?
Henry Hammer: Page b. Got a small "b" on the top of the transcript of record. And it states there that the defendant alleges that the said R.H. Bouligny, Inc. was operating under the requirements and in accordance with the terms and provision of the South --
William J. Brennan, Jr.: Well, what's the significance of the --
Henry Hammer: Pardon sir?
William J. Brennan, Jr.: What is the significance of the deletion according to the footnote by the trial judge of that statement from the answer?
Henry Hammer: We contended sir, that that statement should not be read to the jury because it would prejudice the case of the plaintiff in permitting collateral evidence of compensation to come into the case and if they put --
William J. Brennan, Jr.: Well, excluded from the answer then does not mean stricken from the answer?
Henry Hammer: No, it wasn't stricken. We admit that --
William J. Brennan, Jr.: Merely was not read to the jury?
Henry Hammer: That was not read to the jury.
William J. Brennan, Jr.: So it stands as part of the pleading, is that it?
Henry Hammer: That's correct. The evidence also shows they had 40 or 50 employees which I don't think it's in the transcript of the record but there is a document which states that.
William J. Brennan, Jr.: Well, now did the Court of Appeals, in its opinion anywhere refer to that provision or otherwise state that the Bouligny, if that's the name of it?
Henry Hammer: Bouligny.
William J. Brennan, Jr.: Bouligny was required to operate under the compensation --
Henry Hammer: No, nothing was stated in the Court of Appeals' opinion.
William J. Brennan, Jr.: Oh, I have it, I see it at page 59, it was conceded in the Court below that both Blue Ridge, the owner, and Bouligny, the contractor had complied with and were operating under the compensation --
Henry Hammer: Yes sir. And I want to call the Court's -- the Court's -- Your Honors' attention to the fact that Bouligny had elected to come in, not -- you read on page c of the transcript of record, paragraph 7, and there the distinguishing feature that Bouligny, the respondent had elected to come --
William J. Brennan, Jr.: No, you mean Blue Ridge?
Henry Hammer: I mean -- excuse me, Blue Ridge.
William J. Brennan, Jr.: Yes.
Henry Hammer: Blue Ridge.
William J. Brennan, Jr.: Had elected and over -- earlier it says that the Bouligny, it -- was operating under the requirement.
Henry Hammer: Correct. That (Voice Overlap).
William J. Brennan, Jr.: That's the significant --
Henry Hammer: Yes, sir. If the Court please, may I reserve the remainder of the time for rebuttal.
Earl Warren: You may. Thank you.
William J. Brennan, Jr.: You may Mr. Hammer. Mr. Walker.
Wesley M. Walker: Mr. Chief Justice and members of the Honorable Court. As the Court has seen from the transcript, the respondent here is a Rural Electric Cooperative operating under the laws of the State of South Carolina. It was created by a special statute, the Rural Electric Cooperative Act of South Carolina. And in the course of his business through the years, it entered upon and continued a very large expansion program. This program went on for years being largely done by its own employees. Upon occasion, the respondent here would contract for a certain work to be done. In 1952, the respondent here led a contract after procuring a loan from the Federal Rule Electrification Administration and this contract contemplated this construction of a body to seven miles of conversion lines and about 24 miles of new lines and also for two substations. The petitioner here was an employee of the contractor, Bouligny, that is the contractor was his immediate employee. We point out there to the Court that the statute, 72-11 of the South Carolina Code of Laws of 1952 contemplates the letting of work by contract and for that work that is done by contract to be a part of the work of the owner, that is the employer. Reading from 72-11 which is on page two of our briefs, it says that in this section and Section 72-113 and 72-114 referred to as owner, “When any person undertake to perform or execute any work which is a part of his trade, business occupation, and contracts with any other person referred to as,” in this section and Section 72-113 to 116, “referred to as subcontractor, for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner. The owner shall be liable to pay to any workman employed in the work any compensation under this title which he would've been liable to pay if the workman had been immediately employed by him." My point there is that the statute itself contemplates the contracting of the work. We say here that the work being done was a part of the trade and business of the respondent.
Charles E. Whittaker: (Inaudible) -- do I understood you -- and do I correctly understand that statute is a general statute that applies to all employer's business?
Wesley M. Walker: Yes, sir. That is correct. That statute is the general workman compensation part of a general one, Workmen's Compensation Statute of South -- South Carolina.
Charles E. Whittaker: What's commonly known as the statutory employee section in compensation acts?
Wesley M. Walker: Yes. That is correct. And here, the petitioner, at the time of his injury had climbed a substation that was under construction. He was not injured by the substations but he reached out and contacted a line that was connected to the substation on the outside and that he was going to measure what they call a jumper and he was going to measure that line, that jumper to connect it from the line on the outside to a point on the inside of the substation. It was then that his injury occurred. Thereafter, this petitioner as shown by the record, collected his compensation from the insurance carrier for his immediate from -- of his immediate employee, that is the Bouligny Company. This action was subsequently brought. The sections or in the answer as shown in the brief, I submit that first we play it, the Workmen's Compensation law of South Carolina as a bar alleging that the employee, that is the petitioner, claimed it below, had collected his Workmen's Compensation and that he was barred by the Act. At that time, the petitioner through his counsel moved to strike. At the same time, we moved to amend to specifically add this portion of the statute including the words that the work being done was a part of the trade, business, and occupation of the employer. The trial judge allowed the amendment and denied the motion to strike. The case came on for trial and immediately before going into the courtroom, the jury having been drawn, there was a conference before the District Judge for the purpose of hearing the motion as made by the plaintiff's counsel, that is the petitioner here. And at that time, the plaintiff's counsel, the petitioner here, moved to eliminate from the case all evidence relating to Workmen's Compensation excepting the one item of whether or not the work being done was a part of the trade and business of the owner-employer, the respondent here. The Court will see on page 2 which my adversary read a moment ago at the top and there the Court repeated in substance his motion. As I started out to say in the very beginning, what you are doing now, you are moving that they not be allowed to read that defense before the jury because it is a legal defense, purely a question of law and must be decided on legal grounds. Later on and following all over to page 4, the defense in the motion was discussed and thereupon, upon the petitioner's motion and by the trial judge, everything was excluded excepting the point as stated toward the bottom of page 4. Mr. William stated, "The only question left would be whether or not this was part and parcel of the business of Blue Ridge." In other words, was the only question that would be left is and the meaning of the Workmen's Compensation Act was the plaintiff, the employee of Blue Ridge Electric that would be the only question left. Mr. Hammer stated that's correct. We submit that in the course of the conversation there, the trial judge concluded that here was a question of law. The petitioner's counsel was contending to the Court that it was purely a question of law. Time and again during the trial, the trial judge stated that it was strictly a question of law. And at the time that petitioner made his motion to strike, the district judge then stated that it was a question of law. There was no question at that time and there was no question before the trial judge as to the sufficiency of the elements. That was not mentioned before his answer. The argument was and the District Judge concluded that it was strictly and purely a question of law and we submit that the District Judge made his decision upon an erroneous concept of South Carolina law. The District Judge said --
Charles E. Whittaker: (Inaudible)
Wesley M. Walker: The District Judge concluded and stated that the work being done was not a part of the trade and business of the owner, the employer who --
Charles E. Whittaker: (Inaudible)
Wesley M. Walker: I -- I think I'm answering you --
Charles E. Whittaker: (Inaudible)
Wesley M. Walker: The counsel for the plaintiff took that position at the very outset before we went into the courtroom by moving it to be eliminated and excluded upon grounds that it was strictly a question of law and his statement on page 2 as the Court repeated his motion and he said that at that time that he was moving because it was a legal question and a question only for the Court to decide.
William J. Brennan, Jr.: Well, may I ask Mr. Walker, does that mean that even if there is merit, I'm not suggesting there is, just as a hypothesis, in the position that the Court of Appeals here treated the Workmen's Compensation Act contrary to the way the Supreme Court of South Carolina did in the Adams case. Assuming that was so, that nevertheless, the petitioner could not here be heard on the question?
Wesley M. Walker: Mr. Justice Brennan, I submit that the petitioner's argument with respect to the decision of the South Carolina Supreme Court --
William J. Brennan, Jr.: There's no need to argue that now. I'm -- I'm asking -- assuming --
Wesley M. Walker: I did not follow you.
William J. Brennan, Jr.: Assuming that that was -- is a sound argument, are you telling us nevertheless he cannot be heard because of the events which you referred us to at page 4?
Wesley M. Walker: I submit -- yes sir, I submit that.
William J. Brennan, Jr.: That's all I'm trying to get.
Wesley M. Walker: Yes, sir. I -- I do contend that because here was a question of law. Now, may I go further in that direction? We submit that the evidence here is abundant. I challenge the statement of my adversary that the evidence was insufficient. The evidence here was amply abundant. There was a testimony of Mr. (Inaudible), the manager. There was the testimony of Mr. (Inaudible), the engineer. There was the contract which was introduced into evidence. All of that is clearly set forth in what we currently -- carefully documented opinion of the court below. I believe --
William J. Brennan, Jr.: Now what is -- what is your argument but -- in answer to his -- based on the Adams case?
Wesley M. Walker: We submit that he is -- he, our petitioner here, my adversary is drawing an improper conception of what the South Carolina Supreme Court has said. The South Carolina Supreme Court in the Adams versus Davison-Paxon case affirmed the doctrine that has stood for many years in South Carolina dating back to Marchbanks versus Duke Power Company. The Marchbanks versus Duke Power Company is the bedrock of this principle in South Carolina and it has been affirmed time and time again. The Ballard case which is relied upon by the petitioner here had been decided and was reported prior to the time of the Adams versus Davison-Paxon case. But the South Carolina Supreme Court did not recognize the principal advocates in the Ballard case that unless the employer was under the Act and had the actual liability, then he would not have any immunity. The South Carolina Supreme Court in the Marchbanks case, it's been -- it cites the Maryland case of the State versus Bennett Building Company. And there, they point out that the basic principle, before they emphasized theories that if the owner, the employer, the statutory employer is under the Act to bear its liabilities, it must also be accepted and is under the Act to bear its immunities. And --
William J. Brennan, Jr.: Are you -- I noticed that the -- that the South Carolina Court observes here is that the Emporium, that was the immediate employer, I have the opinion here, was voluntarily under the Act and is what this holding you -- are you suggesting this holding really is only this that the statutory employer is nevertheless liable notwithstanding the fact that the immediate employer was voluntarily under the Act?
Wesley M. Walker: We do not think that it makes any difference whether or not the immediate employer was a volunteer or compulsory under the Act.
William J. Brennan, Jr.: I see.
Wesley M. Walker: If the employer has in excess, I believe it is a 14 employees then he must come under the Act. And I do not think -- we do not concede that the whole decision would turn upon whether or not the employer had 14 or more or less employees.
William O. Douglas: I mean, if this in the point of petitioner's argument, but I thought that he was arguing that under the Adams case upon -- as a question of fact that in South Carolina, he was determined by a judge. In the federal court it would be a question of fact that would be determined by a jury.
Wesley M. Walker: He makes that point in his reply brief, Mr. Justice Douglas, and I would like to point out to you what he says in his brief on the merits. He says on page 31 of his brief on the merits, in making his point -- his point in (Inaudible) is as follows which appears on page 28. The record is void of the evidence required by South Carolina law to run the applicable, the Workmen's Compensation Act as a defense. Then he says on page 31, the ruling of the Chief Judge of the District Court for the Western District of South Carolina, Honorable C. C. White involved a question of local substantive law of South Carolina. His ruling was in accord with correct principles of law and in consonance with the reasoning of the South Carolina Supreme Court in Miles versus West Virginia Pulp.
William O. Douglas: Now, where -- where is that last --
Wesley M. Walker: That was on page 31 --
William O. Douglas: 31.
Wesley M. Walker: -- of the brief on the merits and then he comes in for the first time in his reply brief and we find it on page 20 where he says that it is a procedural question. But in his brief on the merits, he has previously stated that it was a question of local substantive law of South Carolina. I wish to emphasize that prior to the petition here, there has been no question in the court below of the sufficiency of the evidence. But assuming the point correctly raised here or anywhere else for the first time, we say that the evidence is abundant. It is set forth in the opinion of Judge -- Justice Soper. In the court below, it appears in the transcript. His documentation of the facts on pages 59, 60 and 61, he outlines them. I will not go into them here. We have outlined them and dealt with them extensively in our brief. But we submit this that the question here primarily is a question of law. To go back, there would be nothing to submit to the jury. The question of coverage which is a jurisdictional question, the question of coverage under the South Carolina Workmen's Compensation Act is a question of law for the Court. That was clearly decided in Adams versus Davidson-Paxon. It was previously decided in a number of cases and we submit that that is a law in all jurisdiction. Certainly, it is clearly annunciated time and again under the South Carolina law. Now, if there is no question here for the jury, if it was strictly a question of law, then there could not be any deprivation of right of this petitioner with regard to his rights under the Seventh Amendment as to a jury trial because that question was entirely within the prerogative of the Court and they tried it again. It was still being questioned for the judge to decide as to whether or not there was coverage. There is no submission under our South Carolina law and any law that I know of, may it please the Court, where a question of coverage, a jurisdictional question is to be decided by the jury. Now, with regard to what transpired, at the time of the motion by the petitioner, the respondent here, the defendant had completed his case and thereupon the petitioner, plaintiff below, moved to strike this affirmative defense. At that time, the district judge inquired if he had anything in reply, he asked a direct question. The Court said in the event, I'm reading from page 48 at the bottom of the transcript, the Court said in the event, I overruled your motion that you contemplate putting up in a testimony in reply. You have that right of course, on this point, I mean. My adversary stated, we haven't discussed it but we are making that motion. I frankly don't know at this point of any reply that is necessary, I don't know of any evidence in this case. The Court reporter placed the days there but there, counsel for the petitioner said he knew of no evidence. He pursued his motion and the District Judge prior to any ruling upon that motion stated that in the event he granted it, he would permit the respondent, the defendant in the court below to include the grounds of that defense as a ground for his motion for a directed verdict which the Court assumed that we would make. Thereupon the Court granted the motion and then again, he asked the petitioner if they had any testimony in reply and they said that they had none. Then, the Court permitted us to make our motion for a directed verdict and we submit that there again was a question presented to the petitioner as to whether or not they had made an election with regard to whether or not they proposed to offer any testimony in reply. The opportunity was given to them time and again. And reading a moment ago from page 48 where I read the statement of the Court and of counsel, folio 353 on page 48 will show the grounds that the petitioner here made in his motion to strike. He stated there in his motion was that we move to strike the affirmative defense with respect to those allegation that the plaintiff is precluded or excluded from bringing this action by reason of the fact that he was engaged in work which is part of the trade, business, and occupation of the defendant within the meaning of the Workmen's Compensation Act. For the reason that it has been conclusively demonstrated that the defendant is not engaged in the business of constructing substations and the business of Bouligny was one for the construction of substations and under the provisions of the Act under which the defendant was incorporated, it was he, engaged in the business of supplying and distributing electricity. Now, that was the grounds of its motion and it was directed against the part of that defense which had been agreed upon and ruled by the Court in the conference immediately preceding the trial that there was only one issue here and if we establish that defense then the petitioner concede, the district judge concluded that we would have a complete defense. With regard to the testimony of Mr. Byrd, which my adversary would affect, we submit that the testimony itself stands in the record to be examined by this Court. There was no recanting, there was no retraction. Not only that, it was corroborated by the testimony of Mr. (Inaudible) the engineer who was employed and used by the respondent here in connection with all of the expansion of its electrification program. The record shows and Mr. (Inaudible) testimony shows that they employed some 16 men at all times who engaged two-thirds of that time in construction work, one-third of that time in what might be called maintenance or repair work. There is no place in the testimony where Mr. (Inaudible) takes back or recants, or retracts. What Mr. (Inaudible) does is to point out that the three substation which he stated that the respondent Coop had constructed, that those three substations were all constructed prior to the time of the six which were then and then used as of the date of the trial.
Earl Warren: How long since they had -- according to his testimony as you read it, since they had last built one?
Wesley M. Walker: According to his testimony as I recall, it had been some two or three years. I would have to go for the record up on that. I've -- I believe that it had been several times.
Earl Warren: I thought he had testified that the company had constructed one about three years before and then on his cross-examination he stated that was not the fact.
Wesley M. Walker: I would say this that they -- according to his testimony that they constructed the original substations.
Earl Warren: Well, would you point out to us in the record the particular testimony of Mr. (Inaudible) that you rely upon to show that there were three substations constructed by this company. Where can we find it?
Wesley M. Walker: First, I would refer, Your Honor to page 43.
Earl Warren: Forty-three. What is it --
Wesley M. Walker: Of our brief on the merits. I wish to --
Earl Warren: What's that? Now, let's take it from the record.
Wesley M. Walker: All right, sir. I wanted -- I wanted to refer you there because there, we summarized the testimony of --
Earl Warren: I'd rather have the testimony --
Wesley M. Walker: All right, sir.
Earl Warren: -- if you don't mind.
Wesley M. Walker: On page 31, he was asked a question, "Have any been constructed by his own employees similar to the one near Walhalla that has been under discussion in this case?" Answer - "Yes, sir. We have built substations of that nature.”
Earl Warren: Yes.
Wesley M. Walker: Question - “Do you recall how many substations the cooperative has built with its own employees?” Answer - "Yes, sir, we built three."
Earl Warren: Yes. Now, there was some departure from that, was there not?
Wesley M. Walker: There were some departure from that on cross-examination as to one particular substation as I recall as to whether or not they had built that particular substation.
Earl Warren: That was the one built two or three years before?
Wesley M. Walker: On page 34 --
Earl Warren: 34.
Wesley M. Walker: -- Mr. -- the question was, "Mr. (Inaudible), do you recall when the substation near Walhalla was completed and turned over to the cooperative for use?" He said, "No, sir. I don't recall the exact date but I believe it was in March or February of 1952." That's not your question, sir.
William J. Brennan, Jr.: What about page 40 to 42, Mr. Walker?
Wesley M. Walker: That was on the recall and the cross-examination and the question was, "Is your Oak Way Station what you mean by Tigerville, the one at Oak Way?” And he said, “We do have a station at Oak Way and that would be seventh. Duke Power Company has what we call, eliminated our Tigerville station. That's why it wasn't clear in my mind.”
Earl Warren: But he says, "I beg your pardon, I like to change that sir, if I may. We have a station at Oak Way and that would be seven and Duke Power has what we call, eliminate our client. That wasn't clear in my mind." But where does he say that -- why does he say that they -- where and when the company constructed these three substations?
Wesley M. Walker: I don't recall that he said exactly. I don't think, Your Honor, Mr. Justice -- Chief Justice, I do not think that he testified directly that as to the dates when these three were constructed. I don't think that the question was ever asked. I don't think that he was ever asked with regard to those three stations that were built. When did you build each one? I'm not there when that was asked.
Earl Warren: Yes. Now, I understood you just say there is no repudiation on that, can you show me in the record where his final statement that you rest on said that the company did build station A, did build station B, did build station C?
Wesley M. Walker: No, sir. I don't think that that is in the record. We submit that in so far, he did not testify directly the record as to when and what as to each particular one. There was no effort to show that. I do not think that that is there. The --
Earl Warren: You don't think it's material?
Wesley M. Walker: No, sir. I do not think that it is material in the -- in the least, sir. We submit that the testimony insofar as all of the work that was being done including the matter of constructing the substation would be shown by the testimony of Mr. (Inaudible), by the contract itself and by the testimony of Mr. (Inaudible) but as to when and where they may have built any particular one. We submit that it is not material, with regard to the work being done under this contract being a part of the trade, business and occupation of the respondent.
Earl Warren: Then if they had built some of the substations and so 25 years ago and they built a great number of them since all by contract. You would say that the fact that they did built some 25 years ago made it a part of the business of this corporation for the purposes of this case.
Wesley M. Walker: As long as the work that was being done entered into and became a part of and directly into and became a part of the business of the respondents, the owner. We submit that it would constitute a part of our trade and business.
Earl Warren: Well, I take it that no building built for a manufacturer or a power company or any other kind of a -- of a company becomes a part of this operating business until it's completed and -- and used for that purpose, does it?
Wesley M. Walker: I don't think that a building built by a manufacturer could become a part of its operating business until it is completed. But may I emphasize here that the petitioner was not injured by this substation. He had climbed up the substation and had used it merely as a platform. He was standing on the substation. He contacted a line. He reached out and contacted a newly constructed line that had been constructed as a part of the conversion program under this contract.
Earl Warren: Well, that's that term --
Wesley M. Walker: And it was relied that he --
Earl Warren: -- beside the point we're discussing, isn't it?
Wesley M. Walker: Sir?
Earl Warren: It's not beside the point we've been discussing?
Wesley M. Walker: I think that it is in direct answer to you, Mr. Chief Justice, where it is a -- where the thing that caused his injury is a part of the work of business and trade that was being carried also.
William J. Brennan, Jr.: Mr. Walker, may I ask you one more other question, on this matter of the plaintiff's giving testimony on this issue at the trial court. You referred us to pages 48 and 49, the colloquy between the Court, yourself, and Mr. Hammer. I noticed that when Mr. -- when the Court addresses Mr. Hammer, he -- the phrases that I find, at least two or three times here, in the event I overrule your motion, do you contemplate putting any testimony in reply? Is there any significance in the -- in the event I overruled your motion bearing on what we're interested into?
Wesley M. Walker: I think that there would be some significance there. I think that it would be a matter of the Court giving him notice, it was providing him with every opportunity to protect himself that they are -- he did have the occasion because he could have put in a testimony in and reply --
William J. Brennan, Jr.: Yes, but was -- wasn't the Court in effect saying to him -- perhaps, your motion is well taken, Mr. Hammer. But if I don't agree with you and I overrule it, are you going to be prepared to offer some testimony on the subject, isn't that what it meant?
Wesley M. Walker: Yes, sir.
William J. Brennan, Jr.: Well then, why should he -- when the Court finally ruled with him and dismissed your affirmative defense, why is he penalized to -- not to be allowed to expand the record on that issue, we, in the remand.
Wesley M. Walker: We do not -- we do not think that he is penalized.
William J. Brennan, Jr.: I know but he may have other evidence as I understand it. One of his points here is that if he had an opportunity now that the -- if the law has established for the Court of Appeals includes him in the case that he'd have evidence to establish but in fact you are not engaged in the same business as the petitioner's employer was engaged in. And therefore, that the Workman's Compensation Act provision on which you rely is not applicable.
Wesley M. Walker: I beg your pardon. I didn't hear you there, sir.
William J. Brennan, Jr.: And therefore, as I understand it that he has evidence that had an opportunity to present would establish that the defense under the Workmen's Compensation Act upon which you rely is not a good defense because it would be inapplicable, as I understand his position.
Wesley M. Walker: He stated into the record, Mr. Justice Brennan that he did not know of any evidence and that was immediately upon the motion being made and the Court asked him that question right in the beginning.
William J. Brennan, Jr.: Well, I didn't in -- I didn't quite read it that way. I thought the condition that was being put to him by the trial judge was that as the motion was not well-taken and was overruled that the motion to dismiss, would he be prepared to come across with some additional evidence. And he said or come forward rather, I frankly don't know what this point of any reply that is necessary. I don't know of any evidence in this case and that's the end of it. I don't see that that's any -- suggesting that there is no evidence available if it was necessary to bring it forward.
Wesley M. Walker: Mr. Justice Brennan, it was not brought up at that time with regard to the sufficiency of the evidence. It was still -- been in there strictly a question of law, a question of coverage as to whether or not the work being done was a part of the trade and business of the owner-employer.
William J. Brennan, Jr.: But isn't that question of law even though it's for a judge and not a jury to determine as I gather at least North Carolina practice holds, yet based upon facts?
Wesley M. Walker: Yes, it would be based upon --
William J. Brennan, Jr.: Well, it's not what he was getting at, that he wanted a chance to show that if he had to do it, he could produce facts which would sustain the merit of his motion as a matter of law. That as I understood him and the trial judge in effect said, “No, you're using -- you're putting out any more evidence I think already your motion is well-taken on whatever this is.” And granted his motion.
Wesley M. Walker: But the trial judge based his granting of the motion upon an erroneous concept and that he said that the work that was being done, he said it in this way, he said that, “We were not in the contracting business.” And he said that, “Unless we work in the contracting business,” then he did not consider that the work that we were doing or the work that was being done would be a part of our trade and business and that is clearly on the record as to the basis upon which the trial judge made his ruling. And we say that that was an erroneous concept to the South Carolina law and not upon the basis that they might have some reply testimony that would contradict or change the facts to your circumstances. Thank you, sir.
Earl Warren: Mr. Hammer, you have a couple of minutes left.
Henry Hammer: Yes. Yes, sir. I do want to call the Court's attention to the testimony where this witness (Inaudible) did change his testimony given on direct. And on page 38, the witness was specifically asked on cross-examination, “How long prior to the construction of this substation that Mr. Byrd got his arm spurned off on?” “Has been since the substation had been constructed in behalf of the Blue Ridge off by that?” Answer - “Approximately three years.” And he state that was at Liberty, South Carolina. “Who build that?” He said - “We built that, sir. We did, sir.” Again, he was asked, “Did you build that?” He says, “Yes, sir.” “Three years before?” “Yes, sir.” Then on page 42 of the record, his final examination, the question was asked them, “And the substation at Liberty was built by who?” Answer -- the one -- “There are now, sir, I don't know who built that offhand, sir.” “You don't know who built your substation at Liberty?” “No, not right now. I do not, sir.” Question - “Would it refresh your recollection the name Samta Builders? Do you recall now that they built that substation?” Answer - “Since you mentioned it, they did some work for us, sir.” Question - “I didn't ask you that." I said, "Didn't they build your substation at Liberty? You don't know whether they did or not?” Answer - “I would say, they did, yes, sir.” Then, when he was equivocating, the final question was put to him. “You didn't build any of the substations that you're operating now.” The answer was, “No, sir, we -- no, sir.” That was a final retraction of all his previous testimony by which -- by which they sought to sustain their affirmative defense and we submit that left the record with no evidence upon which the affirmative defense can be sustained on a theory of proof which they presume. And so far as the witness Mr. (Inaudible), significantly enough, he did not testify that the employees of the respondent company built any substations and I call your attention to that, to his testimony. It see my time is up. Thank you.