Pressley v. Turner , 249 N.C. 102 ( 1958 )

105 S.E.2d 289 (1958) 249 N.C. 102

John B. PRESSLEY
v.
Lawrence James TURNER, Geraldine Markham, also known as Carol Brooks, and Parents' Institute, Inc., a Corporation.

No. 233.

Supreme Court of North Carolina.

October 29, 1958.

Elbert E. Foster and Charles M. Welling, Charlotte, for plaintiff appellee.

Kennedy, Covington, Lobdell & Hickman, Charlotte, for defendant Parents' Institute, Inc., appellant.

RODMAN, Justice.

By the express language of our statute, G.S. § 1-105, the operation of a motor vehicle by a nonresident on the highways is the equivalent of the appointment of the Commissioner of Motor Vehicles as process agent for the nonresident. Neither ownership nor physical presence in the motor vehicle is necessary for valid service. It is sufficient if the nonresident had the legal right to exercise control at the moment the asserted cause of action arose. Winborne v. Stokes, 238 N.C. 414, 78 S.E.2d 171; Davis v. Martini, 233 N.C. 351, 64 S.E.2d 1; Ewing v. Thompson, 233 N.C. 564, 65 S.E.2d 17; Queen City Coach Co. v. Chattanooga Medicine Co., 220 N.C. 442, 17 S.E.2d 478; Wynn v. Robinson, 216 N.C. 347, 4 S.E.2d 884. The findings of fact suffice to sustain the service of process.

Institute maintains that Markham was not an agent or servant but an independent contractor. The distinction between an independent contractor and a servant, employee, or agent has been clearly drawn in numerous recent cases. Pearson v. Peerless Flooring Co., 247 N.C. 434, 101 S.E.2d 301; Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220; Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298; Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137; Kesler Construction Co. v. Dixson Holding Corp., 207 N.C. 1, 175 S.E. 843; Aderholt v. Condon, 189 N.C. 748, 128 S.E. 337. Tersely stated, the test which will determine the relationship between parties where work is being done by one which will advantage another is: Who is boss of the job? Work done by one which benefits another is normally the result of a contract. The relationship existing between the worker, on the one hand, and the beneficiary, on the other, may be variously indicated as servant, agent, or employee, each of whom has the same legal relationship to the beneficiary of the work, or, on the other hand, he may be called an independent contractor. All who work do so by virtue of a contract. The servants, the agents, the employees, the executives are not independent. They are subject to orders and under the control of the party for whom the work is being done; and because of the right to control, the doctrine of respondeat superior applies. But when in fact the one doing the work is independent and free from control, the beneficiary is not responsible for the manner in which the work is done.

Recognizing that the right to control is the proper test to determine the validity of service of process, Institute contends two facts stated in its affidavit and not specifically challenged by the evidence for the plaintiff establish that Markham was an independent contractor. These facts are: (1) Markham received no fixed salary, but was paid on a commission basis, and (2) Markham fixed her own hours of work. If it be conceded that these are facts, they do not singly nor in combination serve to establish the relationship of independent contractor. They are at most but signs which must be considered with other indicia to determine the true status of the parties.

The fact that Institute did not prescribe the hours that Markham should keep the office open, or when she should be out soliciting subscriptions to its magazines, or when her work should begin or terminate is, under the facts of this case, of little probative value. Certainly it is not unusual for the manager of an office to establish his own hours of work, to determine when he shall be at his desk, when he shall be out training personnel, or when he shall be engaged in promoting sales. A manager who prescribes his own and the janitor's hours of work is, in the eyes of the law, as much a servant as the janitor so far as imposing liability on the employer for the manner in which the task assigned is performed.

Institute furnished blank receipts to Markham for completion when money was paid to her for magazines sold or for delinquent accounts collected. These receipts prepared by Institute designate her as "agent." Markham refers to herself as "manager" or "employee." The fact that the parties found a commission on monies received from sales or collections a satisfactory means of compensation rather than a fixed salary is of no real moment. Certainly it is not sufficient to overcome other evidence tending to establish agency with its inherent right to control.

The evidence is, in our opinion, sufficient to sustain the findings of fact, and since the findings support the conclusions and judgment, it follows that the judgment is

Affirmed.

PARKER, J., not sitting.