Hampton v. MacOn News Printing Co.

I dissent from the judgment of reversal, and, for reasons hereinafter shown, am of the opinion that the evidence demanded a finding that the newsboy in the present case was an independent contractor and that the trial judge properly directed a verdict for the defendant.

No case involving the question here raised of the status of a newsboy in delivering papers for a publisher, under the circumstances shown, appears to have been before the appellate courts of this State. However, the rule to be applied in determining when one is an independent contractor has been stated many times. "Under the Georgia statute and decisions, the test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, or that of employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract." Yearwood v. Peabody, 45 Ga. App. 451 (2) (164 S.E. 901). See also Cooper v. Dixie Construction Co.,45 Ga. App. 420, 425 (165 S.E. 152); Bentley v. Jones,48 Ga. App. 587, 590 (173 S.E. 737); Swift Co. v. Alston,48 Ga. App. 649, 650 (173 S.E. 741). No written contract having been entered into, from which an intention of the parties might be gathered, we must look to the evidence to determine whether or not the company reserved the right to control, not merely that it did control, the "time, manner, and method" of the work Elmore performed.

In a number of cases in other jurisdictions, some of which are referred to below, a newsboy or carrier of papers has been held to be an independent contractor, as distinguished from a servant of the newspaper publisher, under the particular facts shown. In Greening v. Gazette, 108 Mont. 158 (88 P.2d 862), the carrier agreed to buy papers and deliver them within a certain time, to solicit subscriptions and report to the publisher, but was free to furnish his own method of delivery, and the contract provided that all money collected by the carrier from subscribers should be considered the property of the publisher until all papers furnished him had been paid for. In Creswellv. Charlotte News Pub. Co., 204 N.C. 380 (168 S.E. 408), the newsboy was furnished a certain number of papers to sell each day. The papers were delivered to him on credit and the boy settled for them at 3 cents each, retaining the selling price above this amount, and all unsold papers were returned to the publisher at the end of the day. Newsboys were assigned regular territory, and the publisher's supervisor checked up the boys in order to ascertain if they were on the job or needed additional papers. If a boy did not stay on his beat and was not active in selling efforts he lost his job. The boys were not on the publisher's pay-roll and conducted the selling according to their own methods. In Bernat v. Star-Chronicle Pub. Co., (Mo.App.), 84 S.W.2d 429, the newsboy purchased the paper route without the knowledge of the publisher and was designated "news dealer and circulator" and "agent" in contracts with the publisher, which contracts did not attempt to control the disposal, or manner of disposal, of the papers, although providing for length of service, time of payment of bills, and that papers be delivered promptly upon receipt by the newsboy. In Birmingham Post Co. v. Sturgeon,227 Ala. 162 (149 So. 74), the newsboy was required to call at a stated time for his papers, to be at his news stand to receive other editions, to sell in a defined area at prices fixed by the publisher, and to account daily at a specified rate for all papers not returned to the publisher. In Balinski v. Press Publishing Co., 118 Pa. Super. 89 (179 A. 897), the newsboy bought papers from the publisher's district manager and resold them at a profit. He was required to sell at designated street corners and at a price fixed by the publisher, and was subject to some other restrictions, and the district manager refused to sell the boys papers if they did not follow usual customs. In New York Indemnity Co. v. Industrial Accident Com., 213 Cal. 43 (1 P.2d, 12), the newsboy purchased from the district manager a specified number of papers, payable in cash or at the close of each day's sale, and undertook the retailing of such papers to the public at a specified place and price fixed by the publisher. The boy was required to be active and vigilant in making sales of a prescribed minimum number of papers at or near his designated place. Otherwise his allotted place would be given to another boy and the district manager would refuse him further papers. The district manager testified that one of his own duties was to maintain a status of peace and harmony among the boys, and to so far supervise their daily conduct in the territory under his control as to promote the sale of the greatest possible number of copies of the paper within his district. In Carter Publications v. Davis, (Tex.Civ.App.), 68 S.W.2d 640, 643, it was stated that "an employer has a right to exercise such control over an independent contractor as is necessary to secure performance of the contract according to its terms and to accomplish the results contemplated thereby without creating the relationship of master and servant, so long as the employer does not destroy the employee's power of initiation nor undertake to control the employee in the means and manner of the performance of the work;" citing 14 Rawle C. L. 68.

After a careful examination of all the evidence and on application of the law, I am of the opinion that the trial court properly found that Elmore, the newsboy here, was an independent contractor and that the direction of a verdict in favor of the defendant was not error. The evidence, properly construed in its entirety, shows that the defendant possessed no right of control over Elmore more than the right to have the desired result accomplished, that is, the circulation of its newspaper. Elmore clearly bought from the defendant at wholesale the papers he delivered on his route, and he collected for them at retail. He was at liberty to solicit any one in his territory, and to discontinue any subscription whether the company approved or not. To him only the company looked for payment. It received payment whether or not Elmore was paid by the subscriber. The distribution of the papers was by his own method. The route was not marked out by the company but by another carrier, Elmore's predecessor. The conveyance used was Elmore's. How he covered his route daily was a consideration in which the company did not concern itself. Whatever the company did or could require is shown to have been only forthe purpose of obtaining the result contemplated by its engagement with Elmore.

The plaintiff in error refers especially to certain portions of the evidence which, it is contended, negative any theory that Elmore was an independent contractor. The defendant on several occasions rendered bills to the Georgia Industrial Home and payments for subscriptions were made direct to it. This practice was not general towards Elmore's customers, and, in the case of the Georgia Industrial Home, it appears to have been merely an act of assistance to him. It could not of itself change the status of Elmore, particularly as it is shown that the money was in every instance credited to him and he was charged weekly with the same amount charged him for papers delivered to any other subscriber. The transaction was thus treated as Elmore's business, even if technically the billhead, as between the company and the subscriber, indicated that the company was the Georgia Industrial Home's creditor. It is argued that the fact that customers paid a price of 20 cents per week, fixed by the company, and that the paper was delivered to a "predetermined" person, overcomes any idea of a sale to Elmore. But the evidence fails to show that the company really ever concerned itself with what Elmore was collecting. It merely debited him with charges for the papers, and he paid his account weekly. The person "predetermined" was not one predetermined by the company, but by a carrier, and Elmore sold to whomsoever he pleased. He could, if he desired, because of his experience with the subscriber, delinquent in payment or otherwise, change the predetermination and end the relationship, free from any protest by the company. Furthermore, the set price of 20 cents would not of itself fix his status as a servant. It is common knowledge that many commodities are sold by independent merchants at prices fixed by the manufacturer.

Again, it is argued that there was no outright sale to Elmore, because the company interested itself in and invited complaints from the subscribers. This evinces, however, merely a solicitude as to the ultimate object of the relationship with Elmore, namely, the circulation of its newspaper and the maintenance of the good will of the subscribers. Delivery into the hands of the subscribers was what it wanted to see effected. How this was accomplished did not matter. Even in the case of a most obvious independent contractor, the one who engages him would naturally be interested in the accomplishment of his task. The company here had the right to insist upon delivery of its papers. Complaints which the company invited subscribers to register with it illustrated whether or not delivery was being effected. It appears that in fact the usual practice, in the case of a complaint because of nondelivery, was that the company would endeavor to contact the carrier and have him make proper adjustment. Where he could not be contacted, a paper was sent and the carrier charged a dime. Thus was the company's good will maintained and the circulation upheld. The practice illustrates, not a right of control as to the "time, manner, and method" of the work of the carrier, but only the interest of the company in the requirement of a result. Nor does the fact that a collector for the Macon Telegraph, under the same management as the defendant publisher, accepted a subscription to the Macon News and gave a receipt in its name, receiving no commission for the service, operate as an isolated instance to change the status of Elmore. He was given credit at the usual weekly rate and was charged just as in the case of any other subscriber. Thus the subscription was treated as if produced by him or his agent and as his business. He never requested such assistance, although inferentially he welcomed it, but he did not direct that the receipt be issued in the name of the newspaper.

It is further contended by the plaintiff in error that inasmuch as the Macon News was advertising its product in its own name, without advising the public that subscriptions were matters of control between the public and the carrier, it is thus shown that the company was exercising a right of control inconsistent with independence on the part of the carrier. The answer is that an independent merchant is none the less such by reason of collateral advertising of a product by the one who creates it. Much merchandise, for example, is advertised by both the ultimate seller and the manufacturer. The automobile that is sold by John Jones Company in any Georgia town is nationally advertised by the manufacturer; and shall it be said that if, in demonstrating it, a third party is injured, the fact of manufacture advertising makes John Jones Company an agent or servant and subjects the manufacturer to liability to the person injured? To state the question is to answer it in the negative. The particular advertisement relied upon by the plaintiff in error, and mentioned in the foregoing statement of facts, while carrying the name of the Macon Evening News is in its essence a joint appeal of carrier and newspaper. It advises the public of a contest between carriers for subscriptions, and a Bantam roadster is to be awarded the winner. It is only an instance of circulation promotion work, and not evidential of any reservation of right to control the time, manner, and method of his work if the appeal of the carrier is answered by a reader of the advertisement. Other facts relied on and argued by the plaintiff in error as establishing the carrier as a servant might also be discussed, but I think it sufficient to say, to avoid undue prolongation of this dissent, that they do not overcome the general design and nature of the carrier's employment as an independent contractor.

In the majority opinion the testimony of a former district manager or supervisor of the publisher, Robert Horne, was largely relied on to establish the newsboy here as a servant of the publisher. This witness, however, had been in charge of a district which was far removed from the territory covered by Elmore, and he did not purport to express any knowledge of the relationship between the Macon News and Elmore, although he testified generally as to the alleged control by the paper of its newsboys. Elmore was not, as was usually the case, given a list of subscribers on his route. The paper had no list of his customers. He obtained a route which had been developed by a former carrier, and not by the newspaper. The papers which were delivered to him had no names upon them. It is not disclosed that Horne ever went on Elmore's route, that he ever reprimanded him for putting a paper in a post-office box along the roadside, or at any time gave him any instructions as to what to do or not do. The bills made out by the Macon News were, in the case of Elmore, prepared at his request and for his benefit. Whatever might have been Horne's right as to "firing" other boys, he did not claim any such right as to Elmore. Indeed, with respect to the independence generally of the carriers, he testified: "If the paper tried to make the boy sell to people who wouldn't pay, a lot of times he wouldn't do it. In the finalanalysis, that boy had the right to determine whether or not he was goingto give a man a paper or not." (Italics mine.) Refusing to deliver a paper to an existing subscriber certainly does not suggest any function comporting with the duty of a servant, and the failure of the newspaper to voice its protest on such an occasion augments the reasons hereinbefore stated that the evidence really shows that what the company was interested in was results, and not the time, manner, or method employed by the carrier in accomplishing the object of desired circulation.

In Globe Indemnity Co. v. Industrial Acc. Com., supra, cited and relied on by my brethren, the facts were somewhat similar to those in the present case but there were differences. The newsboy was paid somesalary, however small, and the court considered that the facts showed that "if given any instructions, they would have to be followed by the carrier, at the risk of being discharged if the carrier failed or refused to comply with them," and that "therefore, the right of control existed within the meaning of the tests stated by the authorities cited." No such reservation of right of control is shown in the present case. Neither was Elmore paid any salary. In New York Indemnity Co. v. Industrial Accident Com., supra, in which under the facts shown the newsboy was held to be an independent contractor, the Globe Indemnity Co. case, supra, was distinguished, the California court saying that the evidence there showed, not only that an "express relation of agency" existed, but that the newsboy, in addition to receiving a percentage of the monthly price which the subscribers paid, was also paid a regular sum to cover the cost of distribution in outlying territory. In State Compensation Insurance Fund v. Industrial Acc. Com., 216 Cal. 351 (14 P.2d 306), the Globe Indemnity Co. case was also referred to and the distinction made as in the New York Indemnity Co. case just above mentioned. While the distinction between being paid as salary a small sum in addition to the profits made by the newsboy on the sale of his papers and the reduced charge against a newsboy, as in the present case, for papers, because of the fact that his territory was in a rural district and his customers more scattered than in the case of a city route, may seem of no consequence, the fact of salary, however small, evidently constituted in the mind of the California court an important factor in the determination of the status of the carrier in the Globe Indemnity Co. case, supra. Without this factor it is doubtful if, under the facts otherwise shown, the California court would have ruled as it did in that case, if I correctly interpret the reasoning of the same court in the two later cases decided by it and referred to above, and in which the newsboy was held to be an independent contractor. While, as contended, in effect, by counsel for the plaintiff in error the same motive prompts the payment of an additional sum as salary as in making a reduced charge to a newsboy who is engaged on a rural route, the fact remains that the matter of such reduced charge is entirely consonant with a relationship of independent contractor, while salary is not so identified but rather points out the status of a servant. The Globe Indemnity Co. case, relied on in the majority opinion, must be appraised in the light of the facts there shown and the reasoning of the California court thereupon, and the element of salary being lacking in the present case, in addition to the further fact that "In the final analysis the boy had the right to determine whether or not he was going to give a man a paper or not," whereas in the Globe Indemnity Co. case the court thought the carrier "was obliged to follow instructions," the case relied on in the majority opinion is not, in my opinion, of such persuasion and authority, when applied to the facts of the present case, as to authorize a ruling here that the newsboy Elmore was a servant and not an independent contractor.

In Wilson v. Times Printing Co., 158 Wash. 95 (290 P. 691), cited by the plaintiff, there was a written contract and, as stated in Greening v. Gazette Printing Co., supra, distinguishing it, the paper retained a high degree of control over the carrier and gave him detailed instructions frequently as to where he was to go and what he was to do. The company furnished him with receipt blanks to be delivered to subscribers, and concluding with the words "Received payment for the company," followed by a blank line for the carrier's signature. In addition to the profits which the carrier received on the sale of the papers, he was paid $98 per month, a part of which was to compensate him for using his own car in his work and a part as salary. Obviously the facts in that case are distinguishable from those here under consideration.

A leading case in this State on the question of an independent contractor is L. N. Railroad Co. v. Hughes, 134 Ga. 75 (67 S.E. 542), where certain rights of supervision and control were retained by the employer, and still it was held that the relationship of independent contractor existed. See also Lee v. A., B. A. R. Co., 9 Ga. App. 752, 754 (72 S.E. 165); Quinan v. Standard Fuel Supply Co., 25 Ga. App. 47 (102 S.E. 543); Malin v. Augusta, 29 Ga. App. 393 (115 S.E. 504); Poss Lumber Co. v. Haynie,37 Ga. App. 60 (139 S.E. 127); Cooper v. Dixie Construction Co.,45 Ga. App. 420 (165 S.E. 152). Some supervision and control over the manner of doing the work, where done for the purpose of accomplishing the result intended, is not inconsistent with the relationship of employer and independent contractor. Under the evidence in the present case I am of the opinion that the carrier was an independent contractor, and not a servant of the newspaper, and that the trial court properly directed the verdict in favor of the defendant.