*1 IN THE SUPREME COURT. [21S Co. . Tbe carrier bad actual notice of tbis rule existence wben tbe policy was issued. It is well tbat tbis and a part settled entered into became of tbe carrier’s contract. carrier. It is Tbe'premium paid tbe further well settled tbat tbe insurance carrier usually policy draws tbe contracts a liberal construction is put same favor tbe insured.

If tbe bad not appellant negligent been and careless as hereinabove mentioned, tbe insured would doubtless have an procured insurance policy employee elsewhere tbe would been amply protected by other insurance. appellee Tbe innocent. entirely Legislature

Tbe has tbe Industrial spoken, Commission has acted, tbe defendant Indemnity bad Company notice tbe ten-day provision. Tbe carrier’s policy contract should held valid. J., concurs dissent.

ScheNok, CLONINGER, MRS. JOHN M. of MILTON Divorced Wife and Guardian CLONINGER, CLONINGER and DAINES of JOHN Minor Children CLONINGER, (Employee), v. AMBROSIA CAKE BAKERY Deceased (Employer) COMPANY and LIBERTY MUTUAL INSURANCE COM (Carrier). PANY

(Filed June, 1940.) 1. Master and Servant 55d—§ finding of the Industrial Commission that deceased was em- ployee injury of defendant at the time his fatal is conclusive on the supported competent evidence, notwithstanding courts if Court might finding- have! reached a different conclusion if it had been the fact body. finding 2. support Master and Servant held 39b —Evidence sufficient § employee jobber. deceased of defendant not a Deceased, injury, engaged selling at the time of his fatal products of defendant. Letters him from defendant’s home office were introduced in evidence which contained instructions for the collection of which, exception, charged directly pur- an account as an had been by defendant, stating chaser and also a letter that defendant fill his would deducting orders C.O.D. without commissions and at the end of the week figure plus would then his commissions and send him check therefor salary” up stating difference “to make sum was due for social and also a certain security asking security for his social number. evidence, case, Held: The with other evidence is held sufficient to support finding of the Industrial Commission that the deceased was jobber defendant, independent of the and not a contractor. J., dissenting. Winborne, J., J., Stagy, Barnhill, C. concur dissent. SPRING TERM, N. O.] V.

CLONINGER BAKERY *2 Appeal Stevens, J., defendants from by at'February Term, 1940, RobesoN. Affirmed.

Tbis is an action defendants under the brought by plaintiffs against 120; Code, N. C. Workmen’s Act ch. N. C. Compensation (Laws 1929, 133-A). 1939 sec. [Michie], Commissioner found facts and of law hearing certain conclusions

and an award in This made favor was sustained plaintiffs. John M. deceased, Commission and the court below. The plaintiffs’ 3 in an auto- 1937, injuries died as result September, mobile about 11 while collision, p.m., August, engaged business of cakes for defendant Ambrosia Cake selling delivering Bakery Company, Greensboro, a “jobber” contend that deceased was plaintiffs’

The defendants and as he hot an all of the com- employee. Upon distributor such was of fact: following findings evidence the Commission made the petent was under the Inc., incorporated “1. That the Ambrosia Cake Bakery, in North of North business Carolina. Carolina, doing laws accepted “2. said had or more had bakery employees; That five from the Law; and insurance Compensation purchased compensation Mutual Insurance Liberty Company. manufacturing bakery engaged

“3. That said the business headquarters. cakes its Greensboro distributing Ambrosia was a closed Bakery, Inc., corporation “4. That the Cake said E. P. his brother Colby, with E. P. and with Colby president, W. J. and R. T. stockholders. Colby only Griffin the sole baking

“5. That said E. P. of two other similar Colby president in Jacksonville, Birming- with corporations headquarters Florida, ham, Alabama. formerly

“6. That John M. plaintiffs’ deceased, the Jacksonville for a employed by baking corporation period approxi- mately years; employment said terminated June, “7. That said and E. P. plaintiffs’ Colby, deceased were president, friends; close that said personal Colby arranged said plaintiffs’ deceased to come to North Carolina to sell cakes in a territory to said subject approval selected deceased the Greensboro office. “8. That said deceased' came to North Carolina in 1937, and July, after several visiting parts Carolina, counties, North he selected three including Cumberland and Robeson.

“9. That said leaving Florida, before arranged trade car for a private passenger delivery truck which was used connection Ambrosia selling cakes North Carolina. THE SUPREME COURT. IN Bakeby

Oloningeb Oo. with, Ambrosia agreement “10. That deceased entered into said was to sell cakes whereby of North he Bakery, Inc., Carolina, a commission of 22%. firm. Tenn., for a Chattanooga, “11. That deceased also sold pies said Ambrosia, business was selling

“12. That said deceased’s principal cakes. selling object to deceased Ambrosia did not said

for other firms. fre- on a basis but

“14. That said sold to deceased C.O.D. bakery through and permitted shipments go quently exceptions charge them. taken furnished That orders were on tickets instructions.

according their *3 drawing “16. That Cloninger E. P. for to have Colby arranged commis- week, Cloninger’s $25.00 account to less up per advance per $25.00 sions until totaled Cloninger’s such times commissions week week; that less than Cloninger’s commissions totaled Cloninger’s full death. except immediately week preceding truck “17. That made certain bakery payments Cloninger’s said licenses, business account, liability insurance, purchased public in in Oloninger’s territory; city Fayetteville several towns name of Cake Greens- Bakery, Inc., license was ‘Ambrosia bought ‘to in business of and retail boro, 210,’ Box wholesale engage town Lumberton bakery products’; ‘granted that the license was . Bakery, Inc., privilege delivery Ambrosia . . from truck.’ products bakery to bakery merchandise shipping C.O.D., the in the case Mills Hope account; canteen exception direct charged Mills;

said account was Hope orders delivered said Cloninger took the Mills Hope merchandise and received usual commission. 22% A. Armisted, manager bakery, “19. That Graham sales said deceased,' Mills with the Hope made two to assist trips Hope approved the account Mills securing arrangements. That instructions bakery gave letters to the time, to Cloninger, from time to wit: “ 26, 1937. ‘August “ ‘Ms. Jacic CloNINGee, N. C. Fayetteville, “ ‘Dear help considerably arrange will us out if can you You Jacic: day in one sooner. The reason for this is that get your your order noon train and do not goes your

cake forward we always TEEM, 1940. SEEING N. 0.] CloniNger Oo. hard to it is days damp on these again baked then up, order complete letting from you a line will appreciate dried in time. We icing

get your in as we Mill check arrangéd. get Hope if Please know this can be us our collections. Jacksonville to criticise don’t want Yery truly yours, BaKeby, INC., Ambbosia Cake Manager.’ By Dick, “ 1937. 24, 'August “ 'Mb. Jack CloNINgeb, Fayetteville, Hope on the a corrected statement enclosing Jack: We are '"Deab at once so that trouble didn’t let us know the

Mills account. Sorry you it if you appreciate Would delay. been so much there would not have would check at once. get truly yours,

Yery INC., Bakeby, Ambbosia Cake Manager.’' By VeeNON, Office “ 'August “ CloNINgeb, 'Mb. Jack N. 0. Fayetteville, '' Mills as Hope a check 'Deab Jack : have not received We 15th on August mailed to you which we the statement yet Kindly due. week already past instructions. This is one your as per *4 so, already present if not done Mills, you call on the Hope this statement once. amount of and mail the check to us at matter is $38.51.

Yery truly yours, INC., Bakeby, Ambbosia Cake Geieein, Manager.’ T. By E. “ ‘Mb. Jack CloNINGeb, Delivery, General c/o

Fayetteville, “ of Fair- from the town Just received communication ‘Deab Jack: until good $10.00. This will be us to asking pay mont license If do let you think should this license? 1, you pay June Do we at once. know and will them check us we send

Yery truly yours, Bakeby, INC., Ambbosia Cake By Dick, Manager.’ THE IN SUPREME COURT. CLONINGER V. BAKERY “Excerpt July 23, 1937, Colby letter of President E. P. ‘I don’t want circumstances Cloninger: you quit without first me know the reason.’ letting

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

“22. That said Cloninger independent not or distributor. agent “23. average wage $25.00. That Cloninger’s weekly left him Cloninger wholly dependent upon at the time sons, two injury accident, death minor wit: Daines Rutherford John Cloninger, age 15, Cloninger, Milton Jr., age 13; that sons were the only persons wholly dependent upon said deceased.

“25. widow, That Mrs. John Cloninger, was divorced some time prior to the accident. widow, That the Mrs. John M. Cloninger, is the legal guardian

for the said two minor dependent children.

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

“Award: The Commission awards and the defendants will Mrs. pay John guardian the two minor dependent children, Cloninger and John Milton Daines Rutherford Jr., share at the rate of alike, compensation share week weeks, for 350 expenses of burial plus payment proper parties, exceeding of all nursing, $200.00 and hospital, medical after expense *5 to and approved by bills have been submitted the Industrial Commission. of pay hearing. Wilson, The defendants will the costs this T. A. Chairman.” TEEM, SPEING

N. 0.]

CLONINGER V. BAKERY Full The defendants and to the excepted, assigned error appealed “This of Commission. The Full Commission is as follows: opinion the the an of by time the defendants from award appeal apt course hearing Commissioner to the Full Commission and was in due ably heard the Full which Commission, before at time the case was argued and representing the learned counsel both claim- presented the ants and defendants, and the Commission listened deal of great interest to the able and arguments, record, evidence, has examined the the considered' what other matters there were the pertinent record and issue, doing after so are to find unable reason disturb- justify of ing the conclusions of law and of findings fact, the award hearing the Therefore, Commissioner. the Commission of adopts of fact, law, conclusions and award of the its hearing Commissioner as own of directs the defendants dismissed. Defend- appeal ants cost of pay heáring. will Burén Jurney, Commissioner.” assigned

The defendants error and excepted, from the Full appealed Commission to Court. Superior following judgment

The is the of the Superior Court: cause “This on heard being to be heard at this coming the February, Term of Eobeson Superior County Court the trial of civil cases L. being Honor, heard before his Henry Stevens, Jr., Judge presiding, defendants from an appeal award favor of plaintiffs from full North Carolina Industrial Commission on the record and it to the court and the court appearing being the opinion that there was and is sufficient competent evidence which the Commission could adopt their fact and the court being opinion that the of law conclusions as adopted by the Commission justify the conclusions that the John M. Cloninger, was the time of his death defendant, Ambrosia Inc. The Company, court adopts law, ordered, therefore conclusions of and it is therefore adjudged and decreed that the defendant shall to Mrs. John pay guardian of the two minor dependent Daines children, Eutherford John Jr., Milton and share share alike, at rate of compensation weeks, plus $15.00 week for burial expense proper parties exceed all payment of hospital, nurse and medical after statements expenses of same been submitted to and Com- approved the Industrial mission. And further, that defendants action. pay the costs L. Henry Stevens, Jr., Judge Presiding.”

The defendants and' excepted, assigned Supreme error appealed Court. exceptions error are as follows: assignments *6 THE SUPREME COURT.

32 IN

CLONINGER V. BAKERY conclu- fact and “1. of That tbe court in tbe adopting erred of sions law of tbe Commission. Mrs. pay that defendants adjudging tbe court erred children,

John M. of minor, dependent tbe two guardian com- alike, and share Jr., D. R. and John M. share Cloninger 350 weeks, plus payment week for pensation at tbe rate $200.00, not to exceed tbe funeral to tbe expenses proper parties after statements expenses, of all nurses and medical hospital, North Carolina tbe same have been submitted to and tbe approved of this action. Industrial and that defendants tbe cost Commission, pay overruling objections exceptions That tbe court erred tbe of defendants to tbe award of North Carolina Industrial Commis- tbe sion.”

McKinnon, Nance & Seawell plaintiffs. McLean <&Stacy for defendants. J. involved: Was sufficient

ClabKsoN, question competent Tbe there an employee evidence before tbe Industrial Commission that deceased was We defendant, Bakery, Inc., appellant? tbe Ambrosia Cake tbe think so. 1939 follows: Code, sec. 8081 subsec. is as (Micbie), (i), (f),

“ ‘Injury arising shall mean accident personal injury’ only injury by out of and tbe of tbe and shall not include employment, course any form, unavoidably disease where it results except naturally from tbe accident.” no John dispute Cloninger injury by

There is sustained accident, which was tbe cause of bis on 31 proximate death, August, 2 Pauls, Fayetteville about miles St. between Lumberton. 3 not He died 1937. But defendants contend that September, occurred. employment injury by tbe course tbe when tbe accident defendants admitted that Ambrosia Bakery Company, Tbe tbe bad or and bad tbe Inc., Greensboro, employees five more accepted Insur- tbe Law and that tbe Mutual provisions Compensation Liberty is tbe carrier. Tbe defendants Company deny ance and contend that be was a on a jobber commission basis— for defendant independent agent company, servant, agent Co., Telephone In Lassiter v. 215 N. find: C., (230), 227 we “It jurisdiction established tbe fact made tbe if' conclu Commission, supported by competent evidence, Industrial are Court or this subject Superior and not review tbe sive appeal if it reached a different conclusion may this Court although Court, TERM, N. S3 SPRING 0.] v. CloNINGeb Baxceet Co. Cohen, Co.,

bad been tbe fact & 213 finding v. Goldman body.” Lockey Co., N. Mc C., 356 Baxter Arthur (358-9); (280); Co., Neill v. Construction C.,N. 744 (745). *7 other of wbicb

Among found, fact tbe bearing Commissioner was sustained “Tbat by tbe Commission and court below: tbe bakery account, certain truck bis payments Cloninger’s public liability insurance, purchased business licenses several towns of Cloninger’s tbat tbe was territory; city Fayetteville bought license of tbe name ‘Ambrosia Box Bakery, Inc., Greensboro, C., 210,’ N. ‘to in tbe of engage business wholesale and retail tbat bakery products’; of tbe town granted Lumberton license was to Bakery, Ambrosia Cake of Inc., tbe . . . from privilege delivery truck.’ products Tbat said was not an independent distributor.” agent

A dated July, letter from defendant Bakery Ambrosia Cake Greensboro, N. C. to Company, (office John M. manager), Fayetteville, 0., is as follows: Jacic: Your orders will have to bandied differently tbe “Dear "Wewill your

future. send orders C.O.D. for full is, tbe amount —that without at deducting 22%, tbe then tbe end of tbe will week we figure up plus tbe due make you any difference to up salary. $25.00 22% released shipment We have tbe made to on you tbe 6th as per your tele- gram. We are our enclosing $9.81 check wbicb is tbe difference between tbe already commission allowed and the you up balance to make salary. Kindly this check and return endorse to us to apply it on shipment tbat we allow to togo you This a open. leaves balance on this due us 52c 25c for Social shipment plus Security. Kindly send me Social Number.” your Security (Italics ours.) was tending

There other evidence tbat show Cloninger was an on part There was evidence tbe of defendants to tbe contrary. It was a fact and disputed tbe Industrial Commission found tbe fact against company. defendant haveWe read tbe evidence with care and persuaded are tbat there was sufficient competent to sustain evidence tbe of tbe Industrial Commission. Wagner (S. In v. 245 N. Biggins D.), W., 385, 85 A. L. is R., 776, it “ a in an held: ‘The fact tbat defendant automobile accident case carried ’ may, insurance liability notwithstanding tbe incidental prejudice, be shown for its tbe whether bearing issue tbe driver of tbe automobile employee was an of such defendant or an independent contractor.’ At _‘If annotation is as follows: p. 784, tbe issue in tbe case is as to a plaintiff whether tbe servant tbe defendant or whether be was contractor or independent servant an independent contractor, is evidence admissible tbat tbe defendant carried indemnity insurance on bis employees, including plaintiff, tbe such evidence having been

2 —218 COURT. IN THE SUPREME

Oloninger v. Oo. negative independence treated in tendency cases as having some to show tendency (cid:127)of words, having as contract, or, other ” Riven employee.’ considered the defendant plaintiff bark v. Oil Corp., 217 N. C., (600). 380; Co., 204 N. Publishing think v.

We the cases Creswell Co., Dept. Hollowell v. Conser Bryson C., 665, Lumber 204 N. defendants, distinguish vation and Development, C., 206, 206 N. cited brief defendants able action. The able present record convincing. but not argument persuasive, forceful full of a fine humane attitude circumstances shows distressing Colby, E. P. great company, by president, kindness of the defendant had been Oloninger dead man and his wife children. came North Florida for ten before he Colby years Colby on 23 man, July, 1937, Carolina. In a letter to the dead long without first “I want circumstances you quit writes: don’t me reason.” letting know the *8 given, judgment

For the reasons the is Affirmed. After consideration the entire J., dissenting: careful WinbobNE, majority I am agree

record with the conclusion reached the unable of the Court. terms, the is this: The deceased simplest

Reduced its case in reasons formerly discharged Florida was there employed kindness to come disclosed record. As a matter of he was allowed by the an employee, defendant’s not as goods, North Carolina handle the in the Com- jobber Fayetteville territory. but as a or distributor The that, by of law finds as a but concludes as matter fact, mission office” Greensboro correspondence “originating reason of certain the as another he there- employer,” was, which “tended to treat the deceased non of his at the time death. The conclusion is fore, employee explained record, is the correspondence fully This sequitur. nor in warrants the conclusion reached the authority effect neither in this for reasons which State, Commission. declined Employment There no that understood. evidence the record fully the deceased that of a of an changed jobber to that employee his status ever in North Carolina. working while go case should back to the Industrial Commission event,

In the for that the findings consideration fact are incon- wholly for further opposed of fact nine to fourteen are of fact Findings findings sistent. The former fact twenty-two. point unerringly twenty-one jobber, buying selling goods was a Oloninger bakery, bakery. not an of the 35 TERM, SPRING 1940. 0.]

LaVecchia v. Land Bank. will be specific. Otherwise, fact must case be remanded to County, the Industrial Commission. v. Alamance Gowens 214 C.,N. 18, 197 E., S. 538.

When of fact are insufficient for determination of the proper questions raised, the be Industrial Com- proceeding will remanded Co., mission for further consideration. Farmer Lumber 217 N. E. 158, 7 S. (2d), 376.

Likewise, where the findings of fact are the case should inconsistent, be remanded.

Moreover, the Commission put the conclusion law a third ground: correspondence “originating Greensboro office.” That correspondence not support conclusion, does as a matter law, was an

Facts found misapprehension law will on the set aside theory the evidence should be considered legal true light. Lumberlon, McGill v. 215 N. C., 752, S. E. 324. (2d), See, Bank also, Co., v. Motor C.,N. 5 E. 432, S. (2d), Conclusions of law reached upon misapprehension of legal effect of should facts found also be set aside.

Furthermore, case Rivenbark v. Oil Corp., N. C., into referred has no majority opinion, bearing upon the facts at bar. case J.,C. and BaeNhill, concur in

Stacy, J., dissent. LaVECCHIA, NICHOLAS for PAINE STATISTICAL CORPORA *9 Receiver Corporation TION, Jersey, v. THE NORTH CAROLINA of New BANK JOINT STOCK LAND OF DURHAM.

(Filed June, 1940.) Money against jury payee Received held for 1—Evidence action § accepting corporate personal obligation check in president. by corporation corporate In action the receiver of to recover funds allegedly president corporation purchasing used of the for land account, his individual tracts payment admissions defendant that it the con- entered into president individually, sale land accepted of the sum due the execution of the contracts it corporation president, together checks drawn on funds of the president authority corporate with evidence had no to so use the funds, him, corporation indebted and that trans- corporation, action was not to the Code, is held sufficient to be submitted jury provisions S5, of ch. Public Laws of Michie’s (d) (q).