Hann v. Times-dispatch Pub. Co. Inc

• Decision Date: 12 March 1936
• Citation: 184 S.E. 183
• Parties: HANN. v. TIMES-DISPATCH PUB. CO., Inc., et al.
• Court: Virginia Supreme Court

184 S.E. 183

HANN.

v.TIMES-DISPATCH PUB. CO., Inc., et al.

Supreme Court of Appeals of Virginia.

March 12, 1936.

Error to Law and Equity Court, Part 2, of City of Richmond.

Action by Earl H. Hann, an infant, against the Times-Dispatch Publishing Company, Incorporated, and another. To review a judgment sustaining defendants' plea in abatement and dismissing the action, plaintiff brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, CHINN, and EGGLESTON, JJ.

T. Dix Sutton, of Richmond, for plaintiff in error.

Sinnott & May and Benjamin R. Burner, all of Richmond, for defendant in error.

EGGLESTON, Justice.

Earl H. Hann, a newspaper delivery boy for the Times-Dispatch Publishing Company, Inc., was injured while riding in the automobile of one Bartlam, an employee of the said company, and brought an action at law against both the company and Bartlam to recover damages for his injuries. A plea in abatement was filed asserting that Hann was an employee of the Times-Dispatch Publishing Company, Inc., that his injuries were incurred in an accident which arose out of and in the course of his employment, and that hence his sole remedy was by application to the Industrial Commission of Virginia for an award under the provisions of the Workmen's Compensation Act (Acts 1918, c 400, as amended).

Upon the issue joined on this plea, all matters of law and fact were submitted to the court. To review the judgment sustaining the plea and dismissing the action this writ has been awarded.

The agreed facts are these:

It was Hann's duty to report at 5:30 o'clock every morning to a substation at 310 Shields avenue, in the city of Richmond, where he was given a number of papers to be delivered to a certain number of subscribers along a designated route. The list of subscribers was the property of the newspaper. The carrier was not allowed to deviate from his route, which he was required to complete by 7 a. m. For this purpose he usually rode his own bicycle.

At the end of each week the carrier collected from each subscriber a certain amount, remitted to the company a portion thereof, and retained the balance for his services. All collections were at the risk of the carrier, who had the right to solicit new subscribers along his route.

Hann and forty-six other carriers, all working under similar contracts, were under the direct supervision of one Raymond Bartlam, who had the right to "hire and fire" them. Bartlam was employed and paid a salary by the newspaper company. It was his duty to see that the carriers were on the job each morning and to distribute to each the number of papers required for his particular route. In case any carrier failed to show up on time, as it frequently happened, Bartlam would look him up and transport him to the substa tion in his (Bartlam's) automobile, for which he was paid an allowance by the newspaper company. Hann knew nothing of this arrangement between Bartlam and the company. He usually rode his own bicycle to the substation and had never before been taken there by the supervisor.

On the date in question Bartlam arrived at the substation at 4:45 a. m. and sorted out the number of papers required for each carrier. Hann and another boy by the name of Chambers had not arrived by 5:30 a. m. Shortly thereafter Bartlam started out to look for them. He picked up Chambers on the street and Hann at the latter's home. While proceeding back to the substation by the most direct route, and while Bartlam was driving, the car met with an accident in which Hann was injured.

It is further agreed that the newspaper company was subject to the provisions of the Workmen's Compensation Act, and that neither it nor Hann had given notice of any intention not to be bound thereby.

It was on these facts that the trial court held that Hann was an employee of the newspaper company, that the accident arose out of and in the course of his employment, and that his remedy was under the Workmen's Compensation Act and not in a common-law action for damages.

First, we think Hann was an employee of the newspaper company and not, as he claims, an independent contractor.

Whether the existing status is that of an employee or that of an independent contractor is governed, not by any express provision of the Workmen's Compensation Act, but by the common law. Crowder v. Haymaker, 164 Va. 77, 79, 178 S.E. 803. No hard and fast rule can be laid down for ascertaining whether the status is one or the other. It must be determined from the facts of the particular case in the light of well-settled principles.

In 14 R.C.L. pp. 67, 68, § 3, it is said: "The vital test in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer. Stated as a general proposition, if the contractor is under the control of the employer, he is a servant; if not under such control, he is. an independent contractor. * * * In this connection the ultimate question is notwhether the employer actually exercises control over the doing of the work, but whether he has the right to control."

In two recent cases we have said: "The ordinary test is this: 'Who has the power to control and direct the servants in the performance...