Alumiwall Corp. v. Indiana Employment Sec. Bd., 19282

• Decision Date: 17 May 1960
• Docket Number: No. 19282,No. 1,19282,1
• Citation: 130 Ind.App. 535,167 N.E.2d 60
• Parties: ALUMIWALL CORPORATION, Appellant, v. INDIANA EMPLOYMENT SECURITY BOARD (Members: George Brubaker, Anthony W. Romweber, Jr., Leon E. Worthall, David G. Wylie, William L. Yager, William C. Stalnaker, Ex Officio and Secretary to the Board), and Douglas J. Morris, Liability Referee for the Indiana Employment Security Board, Appellees
• Court: Indiana Appellate Court

Page 60

167 N.E.2d 60

130 Ind.App. 535

ALUMIWALL CORPORATION, Appellant, v. INDIANA EMPLOYMENT SECURITY BOARD (Members: George Brubaker Anthony W. Romweber, Jr., Leon E. Worthall, David G. Wylie William L. Yager, William C. Stalnaker, Ex Officio and Secretary to the Board), and Douglas J. Morris, Liability Referee for the Indiana Employment Security Board, Appellees.

No. 19282.

Appellate Court of Indiana, Division No. 1.

May 17, 1960.

Max Klezmer, Alan I. Klineman, Robert A. Rose, Sidney D. Eskenazi, Indianapolis, Klineman & Rose, Indianapolis, of counsel, for appellant.

Edwin K. Steers, Atty. Gen., Keith Campbell, Deputy Atty. Gen., for appellees.

RYAN, Judge.

Appellant, an Indiana corporation, was engaged in the roofing and siding business, which included the furnishing of siding materials to be affixed to the exterior of various buildings. Appellant's salesmen called upon various prospective customers, and upon the signing of a contract for siding between the appellant and the customer, the appellant then delivered the siding to the job site and contracted a person who was called an 'applicator', whose only function was to apply the siding to the exterior of the building.

The applicators received their assignments of work by calling on the phone or by going in person to the office of the appellant. They received a gross amount according to the number of 'squares', which is a ten foot square space, which they applied to the particular building. The applicators furnished their own trucks and all their own equipment. All expenses pertaining to the transportation and maintenance and upkeep of their equipment were paid by the applicators out of the gross amount they received. Also from this gross amount the applicators would hire whatever help they felt was needed on the particular job. The applicators would then tell the appellant how much these helpers were to be paid, the appellant would then pay such sum to the helpers and deduct this amount from the gross amount due the applicators. The appellant had no right to tell the applicators how many helpers, if any, to hire, nor what they should be paid, nor did the appellant retain the right to fire or hire such helpers. The applicators also had complete discretion as to the manner and means of performing their work, although if the appellant received a complaint from the customer as to the workmanlike manner of the application of the siding to the building, upon inspection by the appellant and upon finding that such work was not being done in a good and workmanlike manner, the applicator could be taken off the job. Any defective work had to be corrected at the expense of the applicators. The appellant exercised no control over such applicators in regard to their working hours, to the number of jobs they took, or as to whether or not they did or did not work. In other words, if the applicator, upon the completion of a job, did not desire any other work he simply did not call the appellant and request further jobs.

The Liability Referee for the Indiana Employment Security Board found that the services of such applicators and their helpers constituted employment by the appellant, and thus appellant was subject to contributions for such employment under the Indiana Employment Security Act. This appeal followed, with the assignment of error being that the decision is contrary to law, which effectively challenges the sufficiency of the facts found to sustain the decision and the sufficiency of the evidence to sustain the findings.

The governing section of the Act is as follows:

'52-1532. 'Employment' defined. 'Employment,' subject to the other provisions of this section, means service, including service in interstate commerce performed for remuneration or under any contract of hire, written or oral, express or implied.

'(a) Services performed by an individual for remuneration shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the board that (A) such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and (B) such individual, in the performance of such services is engaged in an independently established trade, occupation, profession or business; or is an agent who receives remuneration solely upon a commission basis and who is the master of his own time and effort.

'(b) Such term shall include services performed for remuneration by an officer of a corporation in his official corporate capacity.'

The sole question thus presented for decision is whether...