Cooper v. Asheville Citizen-Times Pub. Co., CITIZEN-TIMES

• Decision Date: 01 February 1963
• Docket Number: No. 97,CITIZEN-TIMES,97
• Citation: 129 S.E.2d 107,258 N.C. 578
• Parties: Clayton COOPER, Administrator of the Estate of Betty Sue Cooper, Deceased, v. ASHEVILLEPUBLISHING COMPANY, INC., Floyd Edward Sumner and Clayton Cooper, Individually.
• Court: North Carolina Supreme Court

Page 107

129 S.E.2d 107

258 N.C. 578

Clayton COOPER, Administrator of the Estate of Betty Sue

Cooper, Deceased, v. ASHEVILLE CITIZEN-TIMES PUBLISHING COMPANY, INC., Floyd

Edward Sumner and Clayton Cooper, Individually.

No. 97

Supreme Court of North Carolina.

Feb. 1, 1963

Ward & Bennett, Asheville, for plaintiff-appellant.

Meekins, Packer & Roberts, Asheville, for defendant-appellee Asheville Citizen-Times Pub. Co., Inc.

BOBBITT, Justice.

The evidence, when considered in the light most favorable to plaintiff, was sufficient to require submission of the issue as to whether the death of plaintiff's intestate was proximately caused by the negligence of Sumner. Appellee, in its brief, does not contend otherwise.

The crucial question is whether the evidence, considered in the light most favorable to plaintiff, is sufficient to support a finding that Sumner was acting for and as agent of the Publishing Company as alleged in the complaint. The Publishing Company contends plaintiff's evidence establishes that Sumner was an independent contractor.

The corporate defendant (Publishing Company) publishes two daily newspapers, 'The Asheville Citizen' and 'The Asheville Times,' and the Sunday 'Asheville Citizen-Times.' When the collision occurred Sumner was engaged in delivering the 'Asheville Citizen-Times' in the territory covered by his (two) written agreements with the Publishing Company.

Pertinent to the crucial question, plaintiff offered in evidence (1) the written agreements, (2) the testimony on adverse examination prior to trial of John R. Marks who, from 1953 until his retirement January 15, 1960, was Circulation Manager of the Publishing Company, and (3) the testimony on adverse examination at trial of Sumner.

Each written agreement bears the caption 'Route Agreement.' In each, the Publishing Company is designated 'first party' and Sumner is designated 'second party.'

One agreement, relating to the sale and distribution of 'The Asheville Citizen' and the Sunday 'Asheville Citizen-Times,' provides:

'WITNESSETH: That effective on and after Feb. 19, 1956, the first party hereby agrees:

'1. To grant the second party the right to sell and distribute in a manner satisfactory to subscribers and free from control by first party, THE ASHEVILLE CITIZEN and ASHEVILLE CITIZEN-TIMES to regular subscribers, within the territory designated as 'Citizen Route No. 133.'

'2. To furnish second party a list of subscribers, with expiration dates, said list to be in regular order in which papers have been delivered by the former contractor, but order of delivery may be changed by second party.

'3. To sell to second party copies of THE ASHEVILLE CITIZEN, hereinafter known as morning at 2 1/3 cents per copy and copies of ASHEVILLE CITIZEN-TIMES, hereinafter known as Sunday, at 9 cents per copy, to be used in supplying regular subscribers only. Extra copies to be used in making single copy sales are to be sold to second party at ........ cents per copy morning and ........ cents per copy Sunday. Place of delivery shall be at, or near ........ Time of delivery shall be about 3:00 A.M. daily and ........ Sunday. The place, and time of delivery may be changed by first party upon written notice to second party.

'4. To sell second party mail subscriptions, to be sent to points outside Western North Carolina, at a discount of twenty percent from the regular published mail subscription rates, which shall be paid for by second party within three days.

'5. To sell at approximate cost standard route books, receipt blanks, receipt cards, punches, canvas bags, and similar supplies. Supply free of charge start order blanks, stop order blanks, route list blanks, promotion material and, when mutually agreed, sample copies to be used in soliciting new subscriptions.

'6. The first party represents that it maintains for the benefit of all dealers or carriers a system of handling and billing subscribers who desire to pay their subscriptions for long terms in advance. The first party hereby agrees to pay second party at the regular advertised subscription rates for all such subscriptions that are now paid in advance and continue paying said second party for these subscriptions until expiration. The manner of payments shall be by way of crediting the weekly paper bill of second party.

'7. To credit the account of the second party at the regular advertised subscription rates for all subscribers that are now paid in advance with the present or former contractor.

'8. To accept on behalf of second party new and renewal subscriptions, both cash and credit. In so doing the first party is acting as agent or trustee for second party and his subscribers. If the payment shall pay the subscription for less than one month in advance the entire amount shall then and there be credited to the account of second party. If the payment shall pay the subscription for more than one month in advance, second party shall be credited with the earned portion of said subscription and the unearned portion shall be held in trust and credited to his account weekly, as earned.

'The second party hereby agrees:

'a. To act as dealer for THE ASHEVILLE CITIZEN and ASHEVILLE CITIZEN-TIMES in the territory designated above, and to push the sale of subscriptions to same.

'b. To deliver or cause to be delivered at his own expense promptly upon receipt of his order, copies to subscribers. To pay first party the sum of 15 cents for each missed or incompleted delivery of paper to defray the cost of special delivery regardless of who may be at fault, or for any other default of the second party in his compliance with any provision of this contract.

'c. To purchase from the first party newspapers at rates stated in Paragraph 3 and to pay first party not later than Monday night of each week for all papers furnished during the preceding week. To sell these newspapers to subscribers in his own territory, in accordance with the regular advertised rates.

'd. To furnish only to first party upon request a written list giving correct names with initials and location, street and number, of each and every subscriber, in regular order in which papers are delivered on said route, so as to enable first party to comply with the rules imposed by the Audit Bureau of Circulations, of which first party is a member

'e. To keep a record of any employees necessary in the fulfillment of this contract and fully comply with the Social Security Act, State Unemployment Compensation Act, State Labor Law and all other laws.

'f. To remit to first party the full amount of any collection that may pay a subscriber for more than one month in advance, to be handled in accordance with Paragraphs 6, 7, and 8. To remit to first party for the benefit of the preceding contractor any money collected for papers delivered by the preceding contractor. And at the termination of this contract, to remit to first party, for the benefit of the succeeding contractor, any unearned subscription payments held by second party.

'g. At the termination of this contract, to return the route together with list of subscribers in as good or better order and condition than when received without any charge or demand upon or against first party or anyone else.

'h. To furnish a cash bond of $500.00, payable $........ in cash and $5.00 weekly until fully paid, which shall serve as security for the fulfillment of this contract, and may be used by first party to pay any debts or obligations due first party or its subscribers. First party shall be under no obligations whatever to release any portion of this cash bond until thirty days have elapsed following last delivery of papers by second party and not then provided there is apparent cause or reason for claims. The cash bond held on December 31 of any year shall bear interest at the rate of 3% per annum payable at the rate of one quarter of 1% per month for each multiple of $5.00 on hand the first of each month. Said interest money held on December 31 of any year shall be payable between January 15 and 31 of the following year.

'Both parties hereby agree:

'1-a. That first party may terminate this agreement instanter and without notice whenever second party fails to meet any stipulation in this contract, which cancellation and termination shall not affect its rights against second party for failure of performance; but failure of first party to cancel and terminate shall not constitute a waiver of its right to do so, nor estop it from so doing, in the event of any subsequent default in performance '2-b. Either party may terminate for any reason satisfactory to itself or himself upon 15 days' notice in writing. Regardless of how or by whom termination is made, the second party shall deliver to first party, or some one designated by it, a list of all subscribers and their addresses in regular order in which papers are delivered and shall teach his successor at no expense to first party and without causing any unnecessary delay in delivery of papers on the route; and, if for any reason the second party refuses to teach his successor, the first party shall have the right to apply, from the security furnished by the second party with the first party, guaranteeing performance of this contract, whatever amount is reasonably necessary to defray the expenses of teaching his successor said route.

'3-c. That the terms of this agreement shall not be changed, modified, altered, or supplemented except in writing, signed by the parties hereto.

Edward Sumner (Seal)

J R Marks

Address Sylva N C

For ASHEVILLE CITIZEN-TIMES COMPANY, ......

Inc. (Seal)

'FINANCIAL GUARANTEE

'In order to further secure the ASHEVILLE CITIZEN-TIMES COMPANY against loss under the above and foregoing contract, we hereby unconditionally guarantee on the part of Edward Summer the prompt and faithful performance of each stipulation and hereby acknowledge ourselves severally and collectively bounden unto ASHEVILLE...