Creswell v. Charlotte News Pub. Co, 467.

• Decision Date: 15 March 1933
• Docket Number: No. 467.,467.
• Citation: 168 S.E. 408,204 N. C. 380
• Parties: CRESWELL. v. CHARLOTTE NEWS PUB. CO. et al.
• Court: North Carolina Supreme Court

168 S.E. 408

204 N. C. 380

CRESWELL.

v.CHARLOTTE NEWS PUB. CO. et al.

No. 467.

Supreme Court of North Carolina.

March 15, 1933.

Appeal from Superior Court, Mecklenburg County; MacRae, Special Judge.

Proceeding under the Workmen's Compensation Act by James Creswell against the Charlotte News Publishing Company, employer, and the American Mutual Liability Insur-ance Company, insurer. An award by the hearing commissioner was affirmed by the full commission, and defendant appealed to the superior court. From a judgment annulling the award, plaintiff appeals.

Affirmed.

James Creswell, a fourteen year old boy, was engaged in selling newspapers for the defendant Charlotte News Publishing Company. The plaintiff was engaged by Van Austin, supervisor of sellers of newspapers published by the defendant company, who turned over to him and other newsboys a certain number of papers to sell each day. The papers were delivered to them on credit, and they settled for such papers at the rate of 3 cents each. The newsboys retained as their own the selling price above 3 cents, and all unsold papers were returned to the defendant at the end of the day. The newsboys, including the plaintiff, were assigned a regular territory, and the supervisor of defendant told them what the headlines were in the papers and checked up the boys in order to ascertain if they were on the job or needed additional papers. If they did not stay on the beat assigned and were not active in the effort to sell papers, they lost their jobs. The plaintiff was not on the pay roll of the defendant, did not solicit subscriptions to the paper, and solicited sales in his territory from any one he chose, and otherwise conducted the selling according to his own notions and methods. On Sunday morning, November 22, 1932, the plaintiff, as usual, was in his territory selling papers. A negro hit him on the head with a brick and inllicted injury.

Claim was duly filed with the Industrial Commission, and there was an award by the hearing commissioner, and upon appeal to the full commission the award was affirmed. Thereupon the defendant appealed to the superior court. The trial judge, being of the opinion that the plaintiff was not an employee of the defendant News Publishing Company, annulled the award, and the plaintiff appealed.

Ralph V. Kidd, of Charlotte, for appellant. Thomas W. Ruffin, of Raleigh, for appellee.

BROGDEN, Justice.

Was the plaintiff an employee of the defendant within the purview of the Workmen's Compensation Act?

The act (Pub. Laws 1929, c. 120, § 2) defines "employee" to mean "every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or.written, " etc. The plaintiff was not on the pay roll of the defendant, and...