{ "id": 8561801, "name": "CLAYTON COOPER, Administrator of the Estate of BETTY SUE COOPER, Deceased, v. ASHEVILLE CITIZENTIMES PUBLISHING COMPANY, INC., FLOYD EDWARD SUMNER and CLAYTON COOPER, Individually", "name_abbreviation": "Cooper v. Asheville Citizen-Times Publishing Co.", "decision_date": "1963-02-01", "docket_number": "", "first_page": "578", "last_page": "590", "citations": [ { "type": "official", "cite": "258 N.C. 578" } ], "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": "168 S.E. 408", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "204 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619073 ], "opinion_index": 0, "case_paths": [ "/nc/204/0380-01" ] }, { "cite": "53 A.L.R. 2d 183", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "93 S.E. 430", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "174 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11252148 ], "opinion_index": 0, "case_paths": [ "/nc/174/0031-01" ] }, { "cite": "22 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629821 ], "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0271-01" ] }, { "cite": "113 A. 2d 782", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "184 S.E. 183", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "155 P. 2d 570", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2420383 ], "opinion_index": 0, "case_paths": [ "/or/175/0627-01" ] }, { "cite": "80 So. 2d 770", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 1856798 ], "opinion_index": 0, "case_paths": [ "/miss/224/0654-01" ] }, { "cite": "81 P. 2d 293", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "118 S.E. 2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 652", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626721 ], "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0652-01" ] }, { "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": "105 S.E. 2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608695 ], "opinion_index": 0, "case_paths": [ "/nc/249/0102-01" ] }, { "cite": "101 S.E. 2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627344 ], "opinion_index": 0, "case_paths": [ "/nc/247/0434-01" ] }, { "cite": "79 S.E. 2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625885 ], "opinion_index": 0, "case_paths": [ "/nc/239/0105-01" ] }, { "cite": "64 S.E. 2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612121 ], "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0524-01" ] } ], "analysis": { "cardinality": 1222, "char_count": 30704, "ocr_confidence": 0.531, "pagerank": { "raw": 2.8378045851464725e-07, "percentile": 0.839679456215401 }, "sha256": "3d46545e238549ebd6b63ee1b22638b1dc02e609fb181b0dca6fc99169289082", "simhash": "1:7eb1dbcacc09a409", "word_count": 5063 }, "last_updated": "2023-07-14T19:21:31.620483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CLAYTON COOPER, Administrator of the Estate of BETTY SUE COOPER, Deceased, v. ASHEVILLE CITIZEN-TIMES PUBLISHING COMPANY, INC., FLOYD EDWARD SUMNER and CLAYTON COOPER, Individually." ], "opinions": [ { "text": "Bobbitt, J.\nThe evidence, when considered in the light most favorable to plaintiff, was sufficient to require submission of the issue as to whether the death of plaintiff\u2019s intestate was proximately caused bjr the negligence of Sumner. Appellee, in its brief, does not contend otherwise.\nThe crucial question is whether the evidence, considered in the light most favorable to plaintiff, is sufficient to- support a finding that Sumner was acting for and as agent of the Publishing Company as alleged in the complaint. The Publishing Company contends plaintiff\u2019s evidence establishes that Sumner was an independent contractor.\nThe corporate defendant (Publishing Company) publishes two daily newspapers, \u201cThe Asheville Citizen\u201d and \u201cThe Asheville Times,\u201d and the Sunday \u201cAsheville Citizen-Times.\u201d When the collision occurred, Sumner was engaged in delivering the \u201cAsheville Citizen-Times\u201d in the territory covered by his (two) written agreements with the Publishing Company.\nPertinent to the crucial question, plaintiff offered in evidence (1) the written agreements, (2) the testimony on adverse examination prior to trial of John R. Marks who, from 1953 until his retirement January 15, 1960, was Circulation Manager of the Publishing Company, and (3) the testimony on adverse examination at trial of Sumner.\nEach written agreement bears the caption \u201cRoute Agreement.\u201d In each, the Publishing Company is designated \u201cfirst party\u201d and Sumner is designated \u201csecond party.\u201d\nOne agreement, relating to the sale and distribution of \u201cThe Ashe-ville Citizen\u201d and the Sunday \u201cAsheville Citizen-Times,\u201d provides:\n\u201cWITNESSETH: That effective on and after Feb. 19, 1956, tire first party hereby agrees.\n\u201c1. To grant the second party the right to sell and distribute in a manner satisfactory to subscribers and free from control by first party, THE ASHEVILLE CITIZEN and ASHEVILLE CITIZEN-TIMES to regular subscribers, within the territory designated as 'Citizen Route No. 133.\u2019\n\u201c2. To furnish second party a list of subscribers, with expiration dates, said list to be in regular order in which papers have been delivered by the former contractor, but order of delivery may be changed by second party.\n\u201c3. To sell to seoond party copies of THE ASHEVILLE CITIZEN, hereinafter known as morning at 2 1/3 cents per copy and copies of ASHEVILLE CITIZEN-TIMES, hereinafter known as Sunday, at 9 cents per copy, to be used in supplying regular subscribers only. Extra copies to be used in making single copy sales are to be sold to second party at. cents per copy morning and . cents per copy Sunday. Place of delivery shall be at, or near .Time of delivery shall be about 3:00 A.M. daily and. Sunday. The place, and time of delivery may be changed by first party upon written notice to second party.\n\u201c4. To sell second party mail subscriptions, to be sent to points outside Western North Carolina, at a discount of twenty percent from the regular published mail subscription rates, which shall be paid for by second party within three days.\n\u201c5. To sell at approximate cost standard route books, receipt blanks, receipt cards, punches, canvas bags, and similar supplies. Supply free of charge start order blanks, stop order blanks, route list blanks, promotion material and, when mutually agreed, sample copies to be used in soliciting new subscriptions.\n\u201c6. The first party represents that it maintains for the benefit of all dealers or carriers a system of handling and billing subscribers who desire to pay their subscriptions for long terms in advance. The first party hereby agrees to pay seoond party at the regular advertised subscription rates for all such subscriptions that are now paid in advance and continue paying said second party for these subscriptions until expiration. The manner of payments shall be by way of crediting the weekly paper bill of second party.\n\u201c7. To credit the account of the second party at the regular advertised subscription rates for all subscribers that are now paid in advance with the present -or former -contractor.\n\u201c8. To accept -on behalf o-f second party new an-d renewal subscriptions, both cash and credit. In so doing the first party is acting as agent or trustee for second party and his subscribers. If the payment shall pay the subscription for less than one month in advance the entire amount shall then and there be credited to the account of second party. If the payment shall pay the subscription for more than one month in -advance, second party shall be credited'with the earned portion of said subscription -and the unearned portion shall be held in trust and credited to his account weekly, as earned.\n\u201cThe second party hereby agrees:\n\u201ca. To act as dealer for THE ASPIEVILLE CITIZEN and ASHE-VILLE CITIZEN-TIMES in the territory designated above, and to push the sale of subscriptions to same.\n\u201cb. To deliver or cause to be delivered at his own expense promptly upon receipt of his order, copies to subscribers. To pay first party the sum of 15 cents for each missed or incompleted delivery of paper to defray the cost of special delivery regardless of who may be at fault, or for any other default of the second party in 'his compliance with any provision of this contract.\n\u201cc. To purchase from the first party newspapers at rates stated in Paragraph 3 and to pay first party not later than Monday night of each week for all papers furnished during the preceding week. To sell these newspapers to subscribers in his own territory, in accordance with the regular advertised rates.\n\u201cd. To furnish only to first party upon request a written list giving correct names with initials and location, street and number, of each and every subscriber, in regular order in which papers are delivered on said route, so as to enable first party to comply with the rules imposed by the Audit Bureau of Circulations, of which first party is a member.\n\u201ce. To keep a record of any employees necessary in the fulfillment of this, contract and fully comply with the Social Security Act, State Unemployment Compensation Act, State Labor Law and all other laws.\n\u201cf. To remit to first party the full amount of any collection that may pay a subscriber for more than one month in advance, to be handled in accordance with Paragraphs 6, 7, and 8. To remit to first party for -the benefit of the preceding contractor any money collected for papers delivered by the preceding contractor. And at the termination of this contract, to remit to first party, for the benefit of the succeeding contractor, any unearned subscription payments held by second party.\n\u201cg. At the termination of this contract, to return the route together with list of subscribers in as good or better order and condition than when received without any charge or demand upon or against first party or anyone else.\n\u201ch. To furnish a cash bond of $500.00, payable $. in cash and $5.00 weekly until fully paid, which shall serve as security for the fulfillment of this contract, and may be used by first party to pay any debts or obligations due first party or its subscribers. First party shall be under no obligations whatever to release any portion of this cash bond until thirty days have elapsed following last delivery of papers by second party and not then provided there is apparent cause or reason for claims. The cash bond held on December 31 of any year shall bear interest at the rate of 3% per annum payable at the rate of one quarter of 1% per month for each multiple of $5.00 on hand the first of each month. Said interest money held on December 31 of any year shall be payable between January 15 and 31 of the following year.\n\u201cBoth parties hereby agree:\n\u201c1-a. That first party may terminate this agreement instanter and without notice whenever second party fails to meet any stipulation in this contract, which cancellation and termination shall not .affect its rights against second party for failure of performance; but failure of first party to cancel and terminate shall not constitute a waiver of its right to do so, nor estop it from so doing, in the event of any subsequent default in performance.\n\u201c2-b. Either party may terminate for any reason satisfactory to itself or himself upon 15 days\u2019 notice in writing. Regardless of how or by whom termination is made, the second party shall deliver to first party, or some one designated by it, a list of all subscribers and their addresses in regular order in which papers are delivered and shall teach his successor at no expense to first party and without causing \u25a0any unnecessary delay in delivery of papers on the route; and, if for any reason the second party refuses to teach his successor, the first party shall have the right to apply, from the security furnished by the second party with the first party, guaranteeing performance of this contract, whatever amount is reasonably necessary to defray the expenses of teaching his successor said route.\n\u201c3-e. That the terms of this agreement shall not be changed, modified, altered, or supplemented except -in writing, signed by the parties hereto.\nEdward Sumner (Seal)\nJ. R. Marks Address Sylva, N. C.\nFor ASHEVILLE CITIZEN-TIMES COMPANY, INC.\n(Seal)\n\u201cFINANCIAL GUARANTEE\n\u201cIn order to further secure the ASHEVILLE CITIZEN-TIMES COMPANY against loss under the above and foregoing contract, we hereby unconditionally guarantee on the part of Edward Sumner the prompt and faithful performance of each stipulation and hereby acknowledge ourselves severally and collectively bounden unto ASHE-VILLE CITIZEN-TIMES COMPANY, Incorporated, in the sum of FIVE HUNDRED DOLLARS ($500.00) liquidated damages, jointly and severally, firmly by these presents. We waive notice of any and all defaults on his part.\n\u201cSealed and dated this.day of., A.D. 19....\nFloyd Sumner (Seal) Ray Cogdill (Seal)\nAddress Sylva, N. C. \u201d Address Sylva, N. C.\nThe other agreement, relating to the sale and distribution of \u201cThe Asheville Times\u201d and the Sunday \u201cAsheville Citizen-Times\u201d is different only in the following respects: (1) In lieu of \u201cThe Asheville Citizen\u201d the words \u201cThe Asheville Times\u201d appear; (2) in paragraph 1, the territory is designated \u201cTimes Route No. T-133\u201d; (3) in paragraph 3, (a) after \u201cPlace of delivery shall be at, or near,\u201d the words \u201cSylva Drive-In\u201d are written, and (b) after \u201cTime of delivery shall be about,\u201d \u201c2:30 P.M.\u201d is written; (4) in paragraph b, in lieu of \u201c15 cents\u201d \u2014 \u201c25 cents\u201d appears; (5) paragraph h begins as follows: \u201cTo furnish a cash bond of $300.00, payable $.in cash and $3.00 weekly until fully paid,\u201d etc.; and (6) the \u201cFinancial Guarantee\u201d is signed by Ray Cogdill and David Parker.\nThere was testimony tending to show the facts narrated below.\nThe territory covered by each \u201cRoute Agreement\u201d extended along U. S. Highway No. 19-A (and certain side roads) from Balsam Gap (7-8 miles east of Sylva) to Whittier (2 miles west of Sylva) and included the town of Sylva. The route carrier\u2019s \u201caverage draw of papers was about 300 on the Times and possibly 400 on the Citizen.\u201d\nSumner was approached by G. L. Crisp to succeed one Jamison as carrier on an established newspaper route. Mr. Crisp, a full time employee, was the Publishing Company\u2019s District Supervisor. Mr. Marks testified: \u201cThe District Representative determined whether or not a certain applicant for a carrier\u2019s job would be employed or who would be given a route.\u201d\nThe Publishing Company (as provided in paragraph 2) furnished Sumner \u201ca list of subscribers, with expiration dates, ... in regular order in which papers (had) been delivered by the former contractor (Jamison),\u201d but Sumner was free to change the \u201corder of delivery.\u201d Before signing the agreements, Sumner made two or three trips over the route with Jamison. It was \u201cobvious\u201d that the \u201cquickest and shortest way\u201d to deliver the newspapers was \u201cin the order in which (the names and addresses) appeared on the route list.\u201d Sumner testified: \u201cThe most intelligent and only logical, practical way to deliver them was from house to house right down the road.\u201d\nThe newspapers were delivered to Sumner \u201cin bulk, bailed (sic) with a wire, with (his) name on them and the number of papers at the two delivery points in or near Sylva.\u201d They were delivered to Sumner by a truck of Citizen Express Company, a subsidiary of the Publishing Company. Crisp told Sumner he was to pick up \u201cThe Citizen\u201d at 3:00 a.m. at the Cannon Shell Station in Sylva; that he was to pick up \u201cThe Times\u201d (at 2:30 p.m.) at the Sylva Drive-In Theatre; and that the newspapers were \u201cto be delivered at the earliest possible moment in the shortest time.\u201d \u201c(D)elivery was usually completed by 6:30 unless there was snow or bad weather of some sort.\u201d Sumner was -to complete delivery \u201cjust as quick as (he) could get through.\u201d\nSumner agreed (as provided in paragraph c) to sell the newspapers \u201cin his own territory, in accordance with the regular advertised rates,\u201d to wit, 5 cents per copy for each of the daily newspapers and 15 cents per copy for the Sunday newspaper. In this connection, it is noted that the \u201c(w)holesale rates varied among carriers\u201d and were \u201cdetermined to some extent by the length of the route the carrier had to traverse and the difficulty of the route, the type of terrain,\u201d etc.\nWhen Sumner received from the Publishing Company a \u201cStart Order,\u201d indicating a new subscriber by direct contact with the Publishing Company, he was instructed by Crisp to start delivery to this subscriber immediately. When he received a \u201cStop Order\u201d from the Publishing Company, he could stop delivery immediately or assume the risk by extending credit.\nSumner met with Crisp once a week, primarily \u201cfor weekly settlement.\u201d On such occasions Crisp would discuss with Sumner \u201cproblems or changes of policy on the part of the paper.\u201d Also, Crisp \u201cwould tell (Sumner) he had complaints from people on (his) route and that (he) was going to have to give them service more in line with what they desired than what (he) had been doing.\u201d Sumner testified: \u201cThose complaints usually arose from the fact the paper would not be in the place where the customer wanted it, or would be late. When Mr. Crisp told me about these complaints and who the customers were then I attempted to improve the service as far as these customers were concerned. I knew that Mr. Crisp could terminate this contract at any time.\u201d\nSumner also received from time to time from the Publishing Company notice (on a special form) of complaints the Publishing Company had received from subscribers. Mr. Marks testified: \u201cIf a particular carrier did not pay attention to the complaint forms which we forwarded to him and continued to make the same mistakes, the result would depend \u2014 if he just simply didn\u2019t do anything about any of them why naturally we reserve the right to terminate his contract any time we saw fit; any reason satisfactory to himself or ourself, both had the same right.\u201d\nSumner was required to purchase \u201cat approximate cost\u201d certain supplies including receipt books bearing the name \u201cCitizen-Times.\u201d\nThe Publishing Company furnished the route carriers \u201cround yellow and black boxes\u201d then in use in the Sylva area \u201cbearing the name Asheville Citizen-Times,\u201d suitable for use as a depository for the newspaper upon delivery by the carrier. Many of these had been placed and were in use when Sumner took over the route from Jami-son. When Mr. Crisp was explaining Sumner\u2019s duties, Jamison (in Crisp\u2019s presence) told Sumner that he \u201cwas supposed to put them (the newspapers) in the boxes.\u201d If Sumner, upon request of subscribers or otherwise, wanted additional boxes for such use, he obtained them from the Publishing Company without cost to him.\nDeliveries to subscribers were made at Sumner\u2019s expense. Such deliveries required the use of an automobile or truck Sumner bought a truck for this specific purpose and paid all expenses in connection with the maintenance and operation thereof. Too, Sumner selected, hired and paid a helper. Sumner testified: \u201c I picked him up myself and paid him out of my own pay, out of my own commissions or earnings \u2014out of my receipts from my subscribers, let\u2019s put it.\u201d Sumner also testified: \u201cI never missed serving my route while I was with them.\u201d\nWhat Sumner received for his services, and all that he received, was the difference between the price he paid for the newspapers and \u201cthe regular advertised rates\u201d at which they were sold. The number of newspapers delivered to him approximated the current number of subscribers. Sumner paid for all he received. Approximately five or six per cent of the subscribers made prepayment to the Publishing Company. Collections from the remaining subscribers were made by Sumner and any loss on account of failure to collect fell on him.\nSumner was not carried on the payroll or other records of the Publishing Company as an employee. The Publishing Company paid no withholding, social security or unemployment tax or contribution on account of Sumner. Nor was Sumner covered by the Publishing Company\u2019s workmen\u2019s compensation insurance.\n\u201cIn its simplest form an independent contractor may be said to be one who exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work. (Citation) When one undertakes to do a specific job under contract and the manner of doing it, -including employment, payment and control of persons working with or under him, is left entirely to him, he will be regarded as an independent contractor unless the person for whom the work is being done has retained the right to exercise control in respect to the manner in which the work is to be executed. (Citation) The test is whether the party for whom the work is being done has the right to -control the worker with respect to the manner or -method of doing the work, as distinguished from the right merely to require certain definite results conforming to the -contract. If the employer has right of -control, it is immaterial whether he actually exercises it. (Citation)\u201d Devin, J. (later C.J.), in McCraw v. Mills, Inc., 233 N.C. 524, 526, 64 S.E. 2d 658, and cases cited; Hinkle v. Lexington, 239 N.C. 105, 79 S.E. 2d 220; Pearson v. Flooring Co., 247 N.C. 434, 101 S.E. 2d 301; Pressley v. Turner, 249 N.C. 102, 105 S.E. 2d 289.\nIn Hayes v. Elon College, 224 N.C. 11, 29 S.E. 2d 137, Barnhill, J. (later C.J.), sets forth -a number of elements which ordinarily tend to identify an \u201cindependent -contractor\u201d as distinguished from a \u201cservant\u201d or \u201cemployee.\u201d He then -states: \u201cThe presence of no particular one -of these indicia is controlling. Nor is the presence of all required. They are -considered along with all other circumstances to determine whether in fact there exists in the -one employed that degree of independence necessary to require his classification as independent contractor rather than employee.\u201d\nAccording to the written agreements, Sumner (referred to therein as \u201cdealer\u201d) was granted the right to sell and distribute the newspapers in a manner satisfactory to subscribers, \u201cfree from control\u201d of the Publishing Company. This \u201ccontractual declaration\u201d is not determinative. Watkins v. Murrow, 253 N.C. 652, 657, 118 S.E. 2d 5. \u201c... a master, if he actually be s-uch, cannot exonerate himself from his legally imposed liability to a third person for injury resulting from the misconduct of a servant by the simple expedient of \u2018contracting\u2019 with the servant that he is to be free from the master\u2019s control.\u201d Femling v. Star Pub. Co. (Wash.), 81 P. 2d 293.\nFactors (indicia) tending to support the view that Sumner was an employee, servant or agent of the Publishing Company include the following:\nThe w-ork Sumner was engaged to do, i.e., -deliver newspapers to subscribers, was a \u201cpart -of the regular business of the employer,\u201d to wit, the Publishing Company. Restatement, Agency \u00a7 220(2) (h). As aptly stated by Hall, J., in Laurel Daily Leader v. James (Miss.), 80 So. 2d 770: \u201cThe delivery of newspapers within a reasonable time after publication is essential to the success of the newspaper business. For the greater portion of its income the paper depends on advertising, and the rates for advertising are goverened by the paper\u2019s circulation. Circulation is a necessity for success. The delivery boys are just as much an integral part of the newspaper industry as are the typesetters and pressmen or the editorial staff.\u201d When engaged in delivering the Publishing Company\u2019s newspapers to subscribers, Sumner\u2019s services were rendered in the main stream and in furtherance of the Publishing Company\u2019s business.\nIn Shearman and Redfield on Negligence, Revised Edition, Vol. One, \u00a7 168, this statement appears: \u201cThe true test of an \u2018independent contractor\u2019 would seem to be, that he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.\u201d In 27 Am. Jur., Independent Contractors \u00a7 2, the author states: \u201cExamination of the definitions substantially adopted by most of the courts makes it evident that one of the basic elements of the independent contractor relationship is the fact that the contractor has an independent business or occupation.\u201d Whether the person employed \u201cis engaged in an independant business, calling, or occupation,\u201d is recognized by this Court as a significant factor in determining whether the relationship is that of \u201cindependent contractor.\u201d Hayes v. Elon College, supra. Also, see Restatment, Agency, \u00a7 220 (2) (h).\nSumner was twenty years of age when he became route carrier for the Publishing Company. His distinctive prior occupation was that of brakeman on the Southern Railway. Although \u201ccut off\u201d by the railroad during the whole time he was working \u201cwith the paper,\u201d he retained his seniority \u201cwith the Union and with the Railroad.\u201d He was \u201cjust temporarily off and subject to being called back\u201d and later was called back.\nWhatever title Sumner may have acquired in the newspaper when delivered to him by the Publishing Company, \u201che was bound by contract to sell and deliver the papers promptly to a list of subscribers which was the property of the (Publishing Company) and to repeat the proces's daily.\u201d Journal Pub. Co. v. State Unemployment Comp. Com\u2019n. (Or.), 155 P. 2d 570. Indeed he was subject to penalty( see paragraph b) if he failed to do so. The agreements recognized that the route and the list of subscribers belonged to the Publishing Company. Hann v. Times-Dispatch Pub. Co. (Va.), 184 S.E. 183. The Publishing Company delivered to Sumner the list of subscribers when he became the carrier on its route. When the agreements were terminated, he was obligated to surrender the route and (current) list of subscribers to the Publishing Company and had no further interest of any kind therein.\nWhen .and how Sumner was to perform his obligations to the Publishing Company were fixed in large measure by the terms of the agreements. Delivery in a manner \u201csatisfactory to subscribers\u201d (as provided in paragraph 1) was required. It would seem the Publishing Company had the legal right to require that Sumner meet any reasonable request of a subscriber with reference to the manner in which he delivered the newspaper. Moreover, the possible variations in respect of the manner in which a newspaper might be delivered to the residence of a subscriber are somewhat limited. De Monaco v. Renton (N.J.), 113 A. 2d 782.\nThe Publishing Company had the legal right to terminate the agreements (1) instanter for contract violation, and (2) for any reason satisfactory to it \u201cupon 15 days\u2019 notice in writing.\u201d As stated by Schenck, J., in Lassiter v. Cline, 222 N.C. 271, 274, 22 S.E. 2d 558: \u201cCertainly the 'right to fire\u2019 is one of the most effective methods of control . . .\u201d If Sumner failed to comply with whatever instructions the Publishing Company might give as to the method .and manner of delivering the papers he would thereby risk termination of his agreements as route carrier.\nIt is noted that the services Sumner was required to render were routine in nature, requiring diligence and responsibility rather than discretion and skill. Ordinarily, the day by day sale and delivery of newspapers under -a cancellable agreement of indefinite duration may not be considered \u201c-a specific job under contract\u201d within the meaning of that phrase when used in defining an independent contractor.\nThe fact that Sumner had authority to select and hire and did select and hire a helper is not determinative. Evans v. Lumber Co., 174 N.C. 31, 93 S.E. 430; Lassiter v. Cline, supra. Clark, C.J., in Evans v. Lumber Co., supra, said: \u201cIt is said in 14 R.C.L., 72, that it is idle and vain to assert that an employee is an independent contractor because he has the sole right to hire and discharge his help when his own employer has the unquestioned right to terminate the contractor\u2019s employment at will.\u201d\nDecisions (conflicting) in other jurisdictions, bearing upon the question here presented, are discussed in 53 A.L.R. 2d 183, in an annotation entitled \u201cRoute driver or salesman as independent contractor or employee of merchandise producer or processor, for purposes of re-spondeat superior doctrine.\u201d\nThe Publishing Company stresses our decision in Creswell v. Publishing Co., 204 N.C. 380, 168 S.E. 408, in which this Court held a fourteen-year old newsboy who made street sales under the arrangement therein stated was not an \u201cemployee\u201d within the definition set forth in our Workmen\u2019s Compensation Act. Suffice to say, whether Sumner was an employee within the meaning of the Workmen\u2019s Compensation Act is not presented or decided.\nDecision here is based upon our conclusion that the evidence, when considered in the light most favorable to plaintiff, is sufficient to support a finding that Sumner, when engaged in delivering the Publishing Company\u2019s newspapers to subscribers, was acting as the Publishing Company\u2019s agent and in furtherance of its business. Hence, the judgment of involuntary nonsuit is reversed.\nReversed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Ward & Bennett for plaintiff appellant.", "Meekins, Packer & Roberts for defendant appellee Asheville Citizen-Times Publishing Company, Inc." ], "corrections": "", "head_matter": "CLAYTON COOPER, Administrator of the Estate of BETTY SUE COOPER, Deceased, v. ASHEVILLE CITIZEN-TIMES PUBLISHING COMPANY, INC., FLOYD EDWARD SUMNER and CLAYTON COOPER, Individually.\n(Filed 1 February 1963.)\n1. Master and Servant \u00a7 3\u2014\nA person wbo exercises an independent employment and contracts to do certain work according to Ms own judgment and method without being subject to control except as to the result of his work, is an independent contractor; if the employer has the right to control the worker with respect to the manner and method of doing the work, the worker is an employee regardless of whether the employer exercises the right of control or not.\n2. Same\u2014\nThe fact that the written contract between the parties designates the worker as an independent contractor is not controlling.\n3. Same\u2014 Evidence held for jury on question of whether individual was employee or independent contractor.\nThe contract between the parties and the evidence tended to show that the individual defendant was engaged by the corporate defendant to deliver newspapers to subscribers in a definite territory, that the individual used his own truck in performing the work, selected, hired, and paid his own helper, and received as his remuneration the difference between the advertised retail price of a subscription and the lesser price per newspaper specified in the contract. The evidence further tended to show that \u2022the delivery of newspapers was a part of 'the regular business of the corporate defendant, that the individual was bound to sell and deliver the papers promptly to the list of subscribers, that the route aud list of subscribers belonged to 'the corporate defendant, that the corporate defendant had 'the right to require the individual to meet any reasonable request of a subscriber with reference to the manner in wMch the newspaper was delivered, and had the right to terminate the contract instanter for contract violation and upon 15 days notice for any reason satisfactory to it, etc. Held: In regard to the liability of the corporate defendant for negligent injury to a third person in the operation of the delivery truck, the evidence was sufficient to be submitted to the jury upon the question of whether the individual defendant was an employee or an independent contractor.\n4. Automobiles \u00a7 54a\u2014\nIn this action to recover for injuries sustained as a result of the alleged negligent operation of a newspaper delivery truck, the evidence is held sufficient to be submitted to the jury on the question of whether the person driving the truck, while engaged in the delivery of the newspapers to subscribers, was an employee or an independent contractor of the newspaper publishing company.\nAppeal by plaintiff from Huskins, J., January Civil Term 1962 of BuNCOMbe.\nAdministrator\u2019s action to recover damages for the death of his intestate, Betty Sue Cooper, allegedly caused by the negligent operation of a truck by defendant Sumner while acting for and as agent of the corporate defendant.\nAbout 6:15 a.m. Sunday, July 8,1956, the intestate was a passenger in an automobile operated by her husband, Clayton Cooper, in a general easterly direction on (dominant) U. S. Highway 19-A. Approximately 1.8 miles east of Sylva, there was a collision between the Cooper car and the Sumner truck within the intersection of 19-A and (servient) Snyder Branch Road. Plaintiff\u2019s intestate died from injuries received in said collision.\nIn separate answers, each defendant denied plaintiff\u2019s essential allegations. The corporate defendant alleged, inter alia, Sumner was not its agent but an independent contractor operating his own truck in the conduct of his own business; and that the corporate defendant was not liable for the negligence, if any, of Sumner. Sumner alleged, conditionally, a cross action for contribution against Clayton Cooper and caused him to be joined as a defendant in respect of such cross action. Further discussion of the pleadings and the several issues raised thereby is unnecessary to decision of the question presented by this appeal.\nEvidence pertinent to the agency issue is stated in the opinion.\nAt the conclusion of plaintiff\u2019s evidence, the court allowed the corporate defendant\u2019s motion for judgment of involuntary nonsuit. Thereupon, plaintiff submitted to a voluntary nonsuit as to Sumner. The court then entered judgment of involuntary nonsuit as to the corporate defendant. Plaintiff excepted and appealed.\nWard & Bennett for plaintiff appellant.\nMeekins, Packer & Roberts for defendant appellee Asheville Citizen-Times Publishing Company, Inc." }, "file_name": "0578-01", "first_page_order": 618, "last_page_order": 630 }