Birmingham Post Co. v. Sturgeon

• Decision Date: 01 June 1933
• Docket Number: 6 Div. 349.
• Citation: 227 Ala. 162,149 So. 74
• Parties: BIRMINGHAM POST CO. v. STURGEON.
• Court: Alabama Supreme Court

149 So. 74

227 Ala. 162

BIRMINGHAM POST CO. v. STURGEON.

6 Div. 349.

Supreme Court of Alabama

June 1, 1933

Rehearing Denied June 22, 1933.

Certiorari to Circuit Court, Jefferson County; Romaine Boyd, Judge.

Proceeding under the Workmen's Compensation Act by Mary Sturgeon, as administratrix of the estate of John Sturgeon, deceased against the Birmingham Post Company, to recover compensation as widow of deceased employee. Judgment awarding compensation, and the employer brings certiorari.

Reversed and rendered.

In compensation case, where issue was whether relation of master and servant existed between newspaper publisher and newsboy omission from stipulated facts that any district manager supervised newsboys justified conclusion that there was none (Code 1923, §§ 7585, 7596).

The stipulation of facts is as follows:

"It is agreed by and between the attorneys of record for the respective parties to the above styled cause that the following constitute the material facts involved, and that said cause is to be submitted to the Court for adjudication upon said facts in lieu of oral testimony:

"One. The defendant, The Birmingham Post, is a corporation engaged in the business of publishing and distributing newspapers to the public in the City of Birmingham, Jefferson County, Alabama, and elsewhere, and was on September 20, 1932, and in such business the defendant employed more than sixteen employees.

"Two. On September 2, 1932, and for several years prior thereto, John Sturgeon, aged about 55 years, was a newspaper salesman, commonly called a 'newsboy,' engaged upon the streets of Birmingham, Alabama, in the sale of newspapers published by the defendant. On said date, and for several months prior thereto, the northwest corner of Fifth Avenue North and Twenty Third Street in said City, known to the carriers and to the defendant as the 'Bankhead Corner' was assigned by the defendant to Sturgeon. Sturgeon was required to call at the office of the defendant, 825 North 19th Street, at 11:20 A. M. each day and procure a supply of newspapers, which were furnished him by the defendant. These papers were charged on the books of the defendant to the 'Bankhead Corner' at the rate of 1 1/2 cents per copy. Sturgeon's name was not entered on the payrolls or any other record of the defendant, nor was the name of any other newsboy entered thereon, it being the custom of the defendant, since it entered the business of publishing newspapers in said City in 1921, to charge papers so delivered to newsboys to 'locations' and not to individuals. At 1:10, 3:00 and 4:10 of the afternoon of each day, copies of new editions of defendant's paper were delivered to Sturgeon at the 'Bankhead Corner' and these were likewise charged to the 'Bankhead Corner' on the records of the defendant. Sturgeon received no salary or compensation from the defendant unless the arrangement herein set out for the fixing of his earnings constituted such salary or compensation.

"Three: After calling for papers at 11:20 A. M. as aforesaid, Sturgeon was permitted to follow any route he might choose to the 'Bankhead Corner' and was permitted to sell papers on his way to said corner. He was not, however, permitted to sell any papers except those published by the defendant, except after checking in at defendant's office on Saturday nights. Thereafter and until Monday morning he was permitted to and did sell the Sunday edition of the Birmingham News. After arriving at the 'Bankhead Corner,' he could only sell at that corner and along the following route: Along 22nd, 23rd, 24th, 25th and 26th Streets from Fifth Avenue North to Second Avenue North in said City. Although he was required to sell along this route he was not required to traverse it at any given time or to do so personally. He was permitted to send anyone he chose to sell papers along said route, and was permitted to sell any person he chose along said route, excepting that he was required to be at the 'Bankhead Corner' at the hours above designated to receive later editions of papers. He was permitted to wander about said route as he saw fit and to spend his time as he saw fit so long as he appeared at the 'Bankhead Corner' at the times hereinabove specified for the purpose of receiving the new editions of defendant's paper as were delivered to him, as aforesaid. He was not permitted to sell papers in any territory other than along said route.

"Four: Each paper sold by Sturgeon had printed in bold type thereon the figures 'Three Cents Per Copy' and Sturgeon was not allowed to sell said papers for less than said sum and was required to account for all papers delivered to him during the day. Any sum derived by Sturgeon from the sale of said newspapers, over and above the sales price of Three Cents, by way of tips or gratuity, belonged to him and he was not required to account for said tips or gratuities to the defendant. Under Sturgeon's agreement with the defendant, he was allowed to turn in unsold copies of newspapers which had been delivered to him and the day's charge against the 'Bankhead Corner' on the books of the defendant was given credit therefor at the rate of 1 1/2 cents per copy. The unpaid balance against said account was required to be paid to the defendant in cash by Sturgeon, i. e. Sturgeon was required to pay the defendant the sum of 1 1/2 cents cash for every newspaper which he received from the defendant during the day and which he failed to return to the defendant each night. If Sturgeon failed to appear for papers at 11:20 A. M. on any day, as sometimes happened, another newsboy was assigned to the 'Bankhead Corner' and the aforesaid route for that day with no change in the records of the defendant.

"Five: On the morning of September 20, 1932, after said Sturgeon had procured his papers at the office of the defendant as above described and had gone upon the streets to begin his sales, he was struck by an automobile owned and operated by a party other than defendant at a point on 8th Avenue, North, near 20th Street. As a result of the injuries received in said accident, the said Sturgeon died on September 21, 1932, for which injuries and death no compensation or damages have been paid.

"Six: For a period of Fifty-two weeks prior to the date of said accident, said decedent's average weekly income from sales of newspapers of defendant was $7.54. This sum, per week, constituted the total earnings which the decedent derived from his relationship with the defendant. The defendant

reserved the right to dispense with the services of Sturgeon at any time they became unsatisfactory for any reason.

"Seven: Surviving the decedent are his widow, the plaintiff, and a son over the age of 18 years, who is not mentally or physically incapacitated from earning a livelihood and who did not derive his support from the earning of decedent."

Only two questions are presented to the court for decision:

"1. Was the deceased at the time of his death an employee of the defendant within the meaning of the Workmen's Compensation Act of this State?

"2. Is Mary Sturgeon, as administratrix of the estate of John Sturgeon, deceased, the proper party plaintiff in this cause?"

W. H. Sadler, Jr., and Grady W. Patterson, both of Birmingham, for appellant.

Chas. W. Greer and Thos. Seay, both of Birmingham, for appellee.

GARDNER Justice.

The sole question here for determination is whether or not the arrangement between John Sturgeon, the deceased "newsboy," and The Birmingham Post created the relation of employer and employee within our Workmen's Compensation Statute. Sections 7534-7597, Code 1923.

The cause was tried upon an agreed statement of facts which appears in the report of the case. The purpose of such an agreement was of course to facilitate the hearing, save the time, trouble, and expense of examination of witnesses, and at the same time present to the court the essential facts upon which the decision is to turn. Such agreements are not to be given any strained and unnatural interpretation, but are to be reasonably construed in the light of the language used and the object to be obtained.

These preliminary remarks are appropriate, in view of our conclusion that the insistence on appellee's part that the words in the agreement, "permitted" and "required," should be given so wide a significance as to indicate the relationship of master and servant, is untenable.

Considering the connection in which they are found, these words were simply used, in the sense that, under the particular arrangement between defendant and Sturgeon, the latter was under a duty or obligation to do certain things, and in a like sense was at liberty or permitted to do other things. The agreement presumably sets forth all pertinent facts and contains no indication of a delivery of papers to any regular subscribers, but, on the contrary, we think its language inconsistent with any such theory, and will be here so considered.

"The compensation law does not apply where the injured person is an independent contractor, and the relation of employer and employee does not exist. It is not possible to lay down a hard and fast rule or state definite facts by which the status of men working and contracting together can be definitely defined in all cases as employee or independent contractor. Each case must depend on its own facts. Ordinarily, no one feature of the relation is determinative, but all must be considered together." 1 Honnold on Workmen's Compensation, § 66.

There is no statement in any of our cases (Ex parte W. T. Smith Lbr. Co., 206 Ala. 485, 90 So. 807; Sloss-Sheffield Steel & Iron Co. v. Crim, 219 Ala. 148, 121 So. 408; Martin v. Republic Steel Co. [Ala. Sup.] 146 So 276, 279) indicating a contrary rule,...