Pressley v. Turner

• Decision Date: 29 October 1958
• Docket Number: No. 233,233
• Parties: John B. PRESSLEY v. Lawrence James TURNER, Geraldine Markham, also known as Carol Brooks, and Parents' Institute, Inc., a Corporation.
• Court: North Carolina Supreme Court

Page 289

105 S.E.2d 289

249 N.C. 102

John B. PRESSLEY v. Lawrence James TURNER, Geraldine Markham, also known as Carol Brooks, and Parents' Institute, Inc., a Corporation.

No. 233

Supreme Court of North Carolina.

Oct. 29, 1958

Elbert E. Foster and Charles M. Welling, Charlotte, for plaintiff appellee.

Kennedy, Covington, Lobdell & Hickman, Charlotte, for defendant Parents' Institute, Inc., appellant.

RODMAN, Justice.

By the express language of our statute, G.S. § 1-105, the operation of a motor vehicle by a nonresident on the highways is the equivalent of the appointment of the Commissioner of Motor Vehicles as process agent for the nonresident. Neither ownership nor physical presence in the motor vehicle is necessary for valid service. It si sufficient if the nonresident had the legal right to exercise control at the moment the asserted cause of action arose. Winborne v. Stokes, 238 N.C. 414, 78 S.E.2d 171; Davis v. Martini, 233 N.C. 351, 64 S.E.2d 1; Ewing v. Thompson, 233 N.C. 564, 65 S.E.2d 17; Queen City Coach Co. v. Chattanooga Medicine Co., 220 N.C. 442, 17 S.E.2d 478; Wynn v. Robinson, 216 N.C. 347, 4 S.E.2d 884. The findings of fact suffice to sustain the service of process.

Institute maintains that Markham was not an agent or servant but an independent contractor. The distinction between an independent contractor and a servant, employee, or agent has been clearly drawn in numerous recent cases. Pearson v. Peerless Flooring Co., 247 N.C. 434, 101 S.E.2d 301; Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220; Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298; Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137; Kesler Construction Co. v. Dixson Holding Corp., 207 N.C. 1, 175 S.E. 843; Aderholt v. Condon, 189 N.C. 748, 128 S.E. 337. Tersely stated, the test which will determine the relationship between parties where work is being done by one which will advantage another is: Who is boss of the job? Work done by one which benefits another is normally the result of a contract. The relationship existing between the worker, on the one hand, and the beneficiary, on the other, may be variously indicated as servant, agent, or employee, each of whom has the same legal relationship to the beneficiary of the work, or, on the other hand, he may be called an independent contractor. All who work do so by virtue of a contract. The servants, the agents, the employees, the executives are not independent. They are subject to orders and under the control of the party for whom the work is being done; and because of the right to control, the doctrine of respondeat superior applies. But when in fact the one doing the work is independent and free from control, the beneficiary is not responsible for the manner in which the work is done.

Recognizing that the right to control is the proper test to determine the validity of service of process, Institute contends two facts stated in its affidavit and not specifically challenged by...