James Mac GRAY
v.
Mack F. BENNETT.
No. 102.
Supreme Court of North Carolina.
September 23, 1959.Ward & Ward and A. D. Ward, New Bern, for plaintiff.
Cecil D. May, Ward & Tucker, New Bern, for defendant.
DENNY, Justice.
In our opinion, if it should be conceded that the employer-employee relationship existed between the plaintiff and the defendant at the time complained of, the evidence adduced in the trial below is sufficient, if believed by the jury, to support a finding of want of probable cause.
Even so, the contract under which the plaintiff worked and the course of the business as actually conducted pursuant thereto, created the relation of debtor and creditor only. State v. Covert, 14 Wash. 652, 45 P. 304; Dixie Fire Ins. Co. v. Nelson, 128 Tenn. 70, 157 S.W. 416; State v. Carr, 169 Wash. 56, 13 P.2d 497; Chicago Fire & Marine Ins. Co. v. Fidelity & Deposit Co., 41 Ariz. 358, 18 P.2d 260.
In the case of State v. Covert, supra [14 Wash. 652, 45 P. 305], the factual situation, including the manner in which the business was actually conducted, was almost, if not identical to that in the present case. Covert was employed to work as a driver and collector by the owner of the laundry. He was to receive for his services 22 per cent of the amount of laundry work brought in by him. He was permitted to retain the 22 per cent out of the monies in his hand as soon as the same came into his hand, and to turn in the balance to the laundry. The owner testified, "The laundry brought in by each driver was charged to him." He further testified "that he had told the drivers, including the appellant, that if they trusted anyone, and failed to turn in the money, he would hold them personally responsible for the laundry so charged to them. * * * The cash turned in was not credited to the patrons of the laundry; * * * no account was kept between the laundry and its patrons, but an account was kept between the laundry and the drivers, and on this account the drivers were charged with the bundles brought in by them (according to a fixed schedule of prices), and were credited with 22 per cent of the amount of the goods they handled, and also *328 with such amounts in cash as they from time to time paid." The Court said: "The books at all times showed the amount due from the appellant to the laundry, but not that any sums were due from any of its customers to it. Whether appellant succeeded in collecting the sums owing by patrons for laundry work, or wholly failed to make such collections, was a matter of indifference to the complaining witness, according to the contract between them; and, as already noticed, the work done was charged not to the patrons, but to the appellant, and he was held responsible for the amounts so charged, whether collected by him or not." The Court held that the relation between the owner of the laundry and its driver was that of debtor and creditor and not principal and agent.
It is said in 18 Am.Jur., Embezzlement, section 20, page 580: "Generally, when dealings between two persons create a relation of debtor and creditor, a failure of one of the parties to pay over money does not constitute the crime of embezzlement. For example, a laundry agent who is paid by commissions and who is charged with the entire amount of laundry work done stands in the relation of debtor to the laundry company. He holds money collected in such capacity and cannot be convicted of embezzlement."
In light of the facts revealed on this record, and the authorities cited herein, the judgment as of nonsuit entered below is
Reversed.
HIGGINS, J., not sitting.