Cloninger v. Ambrosia Cake Bakery Co.

• Decision Date: 19 June 1940
• Docket Number: 677.
• Citation: 9 S.E.2d 615,218 N.C. 26
• Parties: CLONINGER v. AMBROSIA CAKE BAKERY CO. et al.
• Court: North Carolina Supreme Court

9 S.E.2d 615

218 N.C. 26

CLONINGER v. AMBROSIA CAKE BAKERY CO. et al.

No. 677.

Supreme Court of North Carolina

June 19, 1940

This is an action brought by plaintiffs against defendants under the N. C. Workmen's Compensation Act (Laws 1929, Chap 120, N.C.Code 1939, (Michie), c. 133A, § 8081(h) et seq.)

The hearing Commissioner found certain facts and conclusions of law and made an award in favor of plaintiffs. This was sustained by the full Commission and the Court below. The plaintiffs' deceased, John M. Cloninger, died September 3, 1937, as a result of injuries in an automobile collision about 11 P. M., August 31, 1937, while engaged in the business of selling and delivering cakes for defendant Ambrosia Cake Bakery Co., of Greensboro, N. C.

The defendants contend that the plaintiffs' deceased was a "jobber" or distributor and as such he was not an employee. Upon all of the competent evidence the Commission made the following findings of fact:

"1. That the Ambrosia Cake Bakery, Inc., was incorporated under the laws of North Carolina, and doing business in North Carolina.

"2. That said Bakery had five or more employees; had accepted the Compensation Law; and purchased compensation insurance from the Liberty Mutual Insurance Company.

"3. That said Bakery was engaged in the business of manufacturing and distributing cakes from its Greensboro headquarters.

"4. That the Ambrosia Cake Bakery, Inc., was a closed corporation with E. P. Colby as President, and with said E. P. Colby, his brother W. J. Colby and R. T. Griffin the sole and only stockholders.

"5. That said E. P. Colby was president of two other similar baking corporations with headquarters in Jacksonville Florida, and Birmingham, Alabama.

"6. That the plaintiffs' deceased, John M. Cloninger, was formerly employed by the Jacksonville baking corporation for a period of approximately 10 years; that said employment terminated in June, 1937.

"7. That said plaintiffs' deceased and E. P. Colby president, were close personal friends; that said Colby arranged for said plaintiffs' deceased to come to North Carolina to sell cakes in a territory to be selected by said deceased subject to approval of the Greensboro office.

"8. That said deceased came to North Carolina in July, 1937, and after visiting several parts of North Carolina, he selected three counties, including Cumberland and Robeson.

"9. That said deceased, before leaving Florida, arranged to trade his private passenger car for a delivery truck which was used in connection with selling Ambrosia cakes in North Carolina.

"10. That said deceased entered into an agreement with the Ambrosia Cake Bakery, Inc., of North Carolina, whereby he was to sell cakes for a commission of 22%.

"11. That said deceased also sold pies for a Chattanooga, Tenn., firm.

"12. That said deceased's principal business was selling Ambrosia cakes.

"13. That said Ambrosia Bakery did not object to the deceased selling for other firms.

"14. That said Bakery sold to the deceased on a C. O. D. basis but frequently made exceptions and permitted the shipments to go through and charge them.

"15. That orders were taken on tickets furnished by said Bakery according to their instructions.

"16. That E. P. Colby arranged for Cloninger to have a drawing account or an advance up to $25.00 per week, less Cloninger's commissions until such times as Cloninger's commissions, totalled $25.00 per week; that Cloninger's commissions totalled less than $25.00 per week except the full week immediately preceding Cloninger's death.

"17. That said Bakery made certain payments upon Cloninger's truck account, his public liability insurance, and purchased business licenses in several towns in Cloninger's territory; that the City of Fayetteville license was bought in the name of 'Ambrosia Cake Bakery, Inc., Greensboro, N. C., Box 210', 'to engage in business of wholesale and retail bakery products'; that the Town of Lumberton license was 'granted to Ambrosia Cake Bakery, Inc., for the privilege *** delivery of bakery products from truck.'

"18. That in shipping merchandise to Cloninger C. O. D., the bakery made an exception in the case of the Hope Mills canteen account; that said account was charged direct by the Bakery to Hope Mills; that Cloninger took the orders and delivered said merchandise to Hope Mills and received the usual 22% commission.

"19. That Graham A. Armisted, sales manager for the said Bakery, made two trips to Hope Mills with the deceased, Cloninger, to assist in securing the account of Hope Mills and approved arrangements.

"20. That said Bakery gave instructions in letters to the deceased, Cloninger, from time to time, to-wit:

"'August 26, 1937

"'Mr. Jack Cloninger,

"'Fayetteville, N. C.

"'Dear Jack:

"'You will help us out considerably if you can arrange to get your order in one day sooner. The reason for this is that your cake goes forward on the noon train and we do not always have your complete order baked up, then again on these damp days it is hard to get your icing dried in time. We will appreciate a line from you letting us know if this can be arranged. Please get Hope Mill check in as we don't want Jacksonville to criticise our collections. Very truly yours, Ambrosia Cake Bakery, Inc.

"'By Dick, Manager.'

"'August 24, 1937.

"'Mr. Jack Cloninger,

"'Fayetteville, N. C.

"'Dear Jack:

"'We are inclosing a corrected statement on the Hope Mills account. Sorry you didn't let us know the trouble at once so that there would not have been so much delay. Would appreciate it if you would get check in at once. Very truly yours, Ambrosia Cake Bakery, Inc., By Vernon, Office Manager.'

"'August 21, 1937.

"Mr. Jack Cloninger,

"'Fayetteville, N. C.

"'Dear Jack:

"'We have not received a check from the Hope Mills as yet in payment of the statement which we mailed to you on August 15th as per your instructions. This is already one week past due. Kindly call on the Hope Mills if you have not already done so, present this matter and mail the check to us at once. The amount of this statement is $38.51. Very truly yours, Ambrosia Cake Bakery, Inc. By R. T. Griffin, Manager.'

"'Mr. Jack Cloninger

"'c/o General Delivery,

"'Fayetteville, N. C.

"'Dear Jack:

"'Just received communication from the town of Fairmont asking us to pay a license of $10.00. This will be good until June 1, 1938. Do you think we should pay this license? If you do let us know and we will send them a check at once. Very truly yours, Ambrosia Cake Bakery, Inc. by Dick, Manager.'

"Excerpt from July 23, 1937, letter of president, E. P. Colby, to the deceased, Cloninger: 'I don't want you to quit under any circumstances without first letting me know the reason.'

"21. That the plaintiffs' deceased, John M. Cloninger, was an employee of the Ambrosia Cake Bakery, Inc.; that as such employee he sustained an injury by accident arising out of and in the course of his employment with said Bakery on the night of August 31, 1937, about 11 o'clock, when his truck collided with another vehicle on the highway between Lumberton and Fayetteville; that said injury by accident was the proximate cause of his death September 3, 1937.

"22. That said Cloninger was not an independent agent or distributor.

"23. That Cloninger's average weekly wage was $25.00.

"24. That Cloninger left wholly dependent upon him at the time of his injury and death by accident, two minor sons, towit: Daines Rutherford Cloninger, age 15, and John Milton Cloninger, Jr., age 13; that said sons were the only persons wholly dependent upon said deceased.

"25. That the widow, Mrs. John Cloninger, was divorced sometime prior to the accident.

"26. That the widow, Mrs. John M. Cloninger, is the legal guardian for the said two dependent minor children.

"Conclusions of Law: The defendants offered parol evidence explaining such terms in the written correspondence as 'salary' and 'Social Security' number; that plaintiffs' deceased had been a valued employee of the Florida corporation for several years and because of certain conditions, which were unexplained, Cloninger was discharged in Florida, but permitted to represent the North Carolina corporation in this State as a jobber, or distributor; that the Florida official desired and attempted to withhold from the Greensboro office the circumstances of the deceased's discharge in Florida so that the deceased could have an unprejudiced new start in life. While the expressed motives of the Florida management were ideal, the written evidence originating in the Greensboro office tended to treat the deceased as another employee; therefore, the Commission concludes as a matter of law that Cloninger was an employee.

"Award: The Commission awards and the defendants will pay Mrs. John M. Cloninger, as Guardian of the two minor dependent children, Daines Rutherford Cloninger, and John Milton Cloninger, Jr., share and share alike, compensation at the rate of $15.00 per week for 350 weeks, plus payment of burial expenses to the proper parties, not exceeding $200.00 and payment of all hospital, nursing, and medical expense after bills have been submitted to and approved by the Industrial Commission. The defendants will pay the costs of this hearing. T. A. Wilson, Chairman."

The defendants excepted, assigned error and appealed to the full Commission. The opinion of the full Commission is as follows "This was an appeal in apt time by the defendants from an award of the Hearing Commission to the full Commission and was in due course heard before the Full Commission, at which time the case was ably argued and presented by the learned counsel representing both the claimants and defendants, and the Commission listened with a great deal of interest...