Creswell v. Charlotte News Publishing Co.

168 S.E. 408, 204 N.C. 380, 1933 N.C. LEXIS 413

• Court: Supreme Court of North Carolina
• Decided: March 15, 1933
• Status: Published

Opinion

Brogden, J.

Was the plaintiff an employee of the defendant within the purview of the Workmen’s Compensation Act ?

The act defines employee to mean “every person engaged in the employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written,” etc. The plaintiff was not on the payroll of the defendant and although he was assigned a specific territory and required to remain therein and actively engaged in an effort to sell newspapers, notwithstanding he conducted the sales according to bis own methods. Thus, be solicited sales from such persons as he desired. Apparently he was not required to solicit every person within the territory, nor were instructions given him as to the manner of securing purchasers. While there was certain supervision exercised by the agent of defendant with respect to the territory assigned, the control over the methods of selling was too uncertain, indefinite, and remote to constitute the relationship of employer and employee. The Supreme Court of California in New York Industrial Company v. Industrial Accident Corporation, 1 Fed. (2d), 12, has discussed and decided the identical question presented by this appeal upon facts practically identical. Moreover, the definition of employee in the Workmen’s Compensation Act of California is practically the same as contained in the North Carolina act. The Court said: “The undisputed evidence discloses that aside from the question of control the relation created by the daily series of contacts between Eustace and the newspaper publishers, through their legal representative, the district manager, while somewhat difficult of definition as that of an independent contractor, was more nearly allied to the relation of a sales agent, under the authorities to which we have been cited, - than to that of an employee and employer as these terms are defined in the Workmen’s Compensation, Insurance and Safety Act.” Other cases in point and supporting the decision are Associated Indemnity Corporation v. Industrial Accident Corporation, 2 Pac. (2d), 51; Hartford Accident & Indemnity Co. v. Industrial Accident Commission, 10 Pac. (2d), 1035; Slate Compensation Insurance Fund v. Industrial Accident Commission, 14 Pac. (2d), 306; Call v. Detroit Journal Co., 158 N. W., 19, 36 A. L. R., 1164.

Affirmed.