Cloninger v. Ambrosia Cake Bakery Co. , 218 N.C. 26 ( 1940 )

ClabKsoN, J.

Tbe question involved: Was there sufficient competent evidence before tbe Industrial Commission that deceased was an employee of tbe defendant, Ambrosia Cake Bakery, Inc., tbe appellant? We think so.

N. C. Code, 1939 (Micbie), sec. 8081 (i), subsec. (f), is as follows: “ ‘Injury and personal injury’ shall mean only injury by accident arising out of and in tbe course of tbe employment, and shall not include a disease in any form, except where it results naturally and unavoidably from tbe accident.”

There is no dispute that John M. Cloninger sustained an injury by accident, which was tbe proximate cause of bis death, on 31 August, 1939, about 2 miles from St. Pauls, between Fayetteville and Lumberton. He died 3 September, 1937. But defendants contend that be was not in tbe course of tbe employment when tbe injury by accident occurred. Tbe defendants admitted that tbe Ambrosia Cake Bakery Company, Inc., of Greensboro, bad five or more employees and bad accepted tbe provisions of tbe Compensation Law and that tbe Liberty Mutual Insurance Company is tbe carrier. Tbe defendants deny that Cloninger was an employee and contend that be was a jobber on a commission basis— an independent agent for defendant company, not a servant, agent or employee.

In Lassiter v. Telephone Co., 215 N. C., 227 (230), we find: “It is established in this jurisdiction that tbe findings of fact made by tbe Industrial Commission, if' supported by competent evidence, are conclusive on appeal and not subject to review by tbe Superior Court or this Court, although this Court may have reached a different conclusion if it bad been tbe fact finding body.” Lockey v. Cohen, Goldman & Co., 213 N. C., 356 (358-9); Baxter v. Arthur Co., 216 N. C., 276 (280); McNeill v. Construction Co., 216 N. C., 744 (745).

Among other findings of fact tbe bearing Commissioner found, wbicb was sustained by tbe Full Commission and tbe court below: “Tbat said bakery made certain payments upon Cloninger’s truck account, bis public liability insurance, and purchased business licenses in several towns in Cloninger’s territory; tbat tbe city of Fayetteville license was bought in tbe name of ‘Ambrosia Cake Bakery, Inc., Greensboro, N. C., Box 210,’ ‘to engage in tbe business of wholesale and retail bakery products’; tbat tbe town of Lumberton license was granted to Ambrosia Cake Bakery, Inc., for tbe privilege of . . . delivery of bakery products from truck.’ Tbat said Cloninger was not an independent agent or distributor.”

A letter dated 27 July, 1937, from defendant Ambrosia Cake Bakery Company, Greensboro, N. C. (office manager), to John M. Cloninger, Fayetteville, N. 0., is as follows:

“Dear Jacic: Your orders will have to be bandied differently in tbe future. "We will send your orders C.O.D. for tbe full amount — that is, without deducting tbe 22%, then at tbe end of tbe week we will figure up tbe 22% due you plus any difference to make up the $25.00 salary. We have released tbe shipment made to you on tbe 6th as per your telegram. We are enclosing our check for $9.81 wbicb is tbe difference between tbe commission already allowed you and the balance to make up the $25.00 salary. Kindly endorse this check and return it to us to apply on this shipment tbat we allow to go to you open. This leaves a balance due us on this shipment of 52c plus 25c for Social Security. Kindly send me your Social Security Number.” (Italics ours.)

There was other evidence tending to show tbat Cloninger was an employee. There was evidence on tbe part of defendants to tbe contrary. It was a disputed fact and tbe Industrial Commission found tbe fact against defendant company. We have read tbe evidence with care and are persuaded tbat there was sufficient competent evidence to sustain tbe findings of tbe Industrial Commission.

In Biggins v. Wagner (S. D.), 245 N. W., 385, 85 A. L. R., 776, it is held: “ ‘The fact tbat a defendant in an automobile accident case carried liability ’ insurance may, notwithstanding tbe incidental prejudice, be shown for its bearing on tbe issue whether tbe driver of tbe automobile was an employee of such defendant or an independent contractor.’ At p. 784, tbe annotation is as follows: _‘If an issue in tbe case is as to whether tbe plaintiff was a servant of tbe defendant or whether be was an independent contractor or servant of an independent contractor, evidence is admissible tbat tbe defendant carried indemnity insurance on bis employees, including tbe plaintiff, such evidence having been treated in some cases as having a tendency to negative the independence •of the contract, or, in other words, as having a tendency to show that the plaintiff was considered by the defendant as his employee.’ ” Rivenbark v. Oil Corp., 217 N. C., 592 (600).

We think the cases of Creswell v. Publishing Co., 204 N. C., 380; Bryson v. Lumber Co., 204 N. C., 665, and Hollowell v. Dept. of Conservation and Development, 206 N. C., 206, cited by defendants, distinguishable from the present action. The able brief of defendants and the forceful argument was persuasive, but not convincing. The record is full of distressing circumstances and shows a fine humane attitude and great kindness of the defendant company, by its president, E. P. Colby, to the dead man and his wife and children. Oloninger had been an employee of Colby in Florida for ten years before he came to North Carolina. In a long letter to the dead man, on 23 July, 1937, Colby writes: “I don’t want you to quit under any circumstances without first letting me know the reason.”

For the reasons given, the judgment is

Affirmed.