Beal v. Industrial Commission

• Decision Date: 08 December 1975
• Docket Number: Nos. KCD,s. KCD
• Citation: 535 S.W.2d 450
• Parties: Tom E. BEAL, Petitioner-Appellant, v. INDUSTRIAL COMMISSION and Division of Employment Security, Respondents. ROY WILLEY, INC., Petitioner-Respondent, v. INDUSTRIAL COMMISSION and Division of Employment Security, Appellants. 27006, KCD 27548.
• Court: Missouri Court of Appeals

Page 450

535 S.W.2d 450

Tom E. BEAL, Petitioner-Appellant, v. INDUSTRIAL COMMISSION and Division of Employment Security,

Respondents.

ROY WILLEY, INC., Petitioner-Respondent, v. INDUSTRIAL COMMISSION and Division of Employment Security, Appellants.

Nos. KCD 27006, KCD 27548.

Missouri Court of Appeals, Kansas City District.

Dec. 8, 1975.

Motion for Rehearing and/or Transfer to Supreme Court # KCD

27548 Denied Jan.

12, 1976.

Application to Transfer Denied March 8, 1976.

George T. O'Laughlin, Thomas M. Moore, and Miller & O'Laughlin, P.C., Kansas City, for appellant Tom E. Beal in No. 27006.

Lloyd G. Hanley, Jefferson City, for respondent Industrial Commission in No. 27006.

Terry C. Allen, Jefferson City, for respondent Div. of Employment Security in Nos. 27006 and 27548.

Charles B. Fain, Jefferson City, for appellant Industrial Commission in No. 27548.

Thomas J. Downey, Jefferson City, William W. Beckett, Columbia, for respondent Roy Willey, Inc., in No. 27548 and for amicus curiae Missouri Real Estate Assn. in No. 27006.

Before WASSERSTROM, P.J., and DIXON and SHANGLER, JJ.

PER CURIAM.

Appeal No. 27006 by Tom E. Beal from order affirming decision of the Industrial Commission of Missouri that he became, effective January 1, 1966, an employer subject to the Missouri Employment Security Law, combined (for decision and opinion) with appeal No. 27548 by the Industrial Commission of Missouri and the Division of Employment Security from order reversing and remanding, for proceedings not inconsistent with declarations of law made by the court, decision of the Commission that Roy Willey, Inc., had certain licensed real estate salesmen in 'employment' subject to the Missouri Employment Security Law. See Chapter 288, RSMo 1969, Employment Security (the Act).

On February 2, 1968, the Division of Employment Security notified Tom E. Beal, a real estate broker operating under the name Florida Realty Company, that he was an employer subject to the provisions of the Missouri Employment Security Law for the years 1964, 1965, and 1966, and that his commission salesmen and solicitors were employees within the meaning of the Act. He sought redetermination by the Division and, after two hearings, the Division decided that he was an employer subject to the Act as of January 1, 1966. The decision was affirmed by the trial court. Appeal No. 27006 followed.

On May 5, 1972, the Division of Employment Security determined that commission salesmen for Roy Willey, Inc., a real estate brokerage corporation, were performing services in employment under the Act. The determination was appealed and an appeals referee, after hearing, affirmed the determination. The Industrial Commission of Missouri denied application for further review, thereby adopting the decision of the referee, which decision is the decision of the Industrial Commission for judicial review. Handley v. State, Division of Emp. Security, 387 S.W.2d 247, 248 (Mo.App.1965); § 288.200, RSMo. Upon review, the court found that Willey's salesmen were not in employment within the meaning of the Act, and reversed and remanded the Commission's decision. Appeal 27548 followed.

Section 288.210, RSMo 1969, governing judicial review of decisions of the Industrial Commission, provides:

'* * * In any judicial proceeding under this section, the findings of the commission as to the facts, if supported by competent and substantial evidence * * * shall be conclusive, and the jurisdiction of said (circuit) court shall be confined to questions of law.'

And, 'It is the function of this court * * * to determine whether the findings and decision of the Commission are authorized by law and are supported by competent and substantial evidence on the whole record, whether that tribunal could have reasonably made its findings and reached its result upon consideration of all the evidence before it, and whether the circuit court on review properly ruled the issue.' Handley v. State, Division of Emp. Security, supra, 387 S.W.2d l.c. 251(1). The court is not bound by the Commission's findings on questions of law; and, in the interpretation of applicable statutes, the court's duty is to determine legislative intent from the words used by applying their plain, natural meaning to promote the object of the Act. Bussman Mfg. Co. v. Industrial Commission, 335 S.W.2d 456, 459--460(1--3) (Mo.App.1960); Crawford v. Industrial Commission, 482 S.W.2d 739, 741(3, 4) (Mo.App.1972).

In 1966, Tom E. Beal maintained offices at 3706 Broadway, Kansas City, Missouri, and 111 South Meramec, Clayton, Missouri. He engaged clerical office workers, commission telephone solicitors, and commission real estate salesmen in his business. His solicitors worked in his offices and in their homes. They were paid at a rate of $3.00 for each appointment made and $5.00 for each sale resulting from an appointment. They were guaranteed $1.65 per hour. He did not have four or more individuals (excluding salesmen and brokers) in this employment for the required portion of a day in each of twenty different calendar weeks in 1964 and 1965 but, including office workers, solicitors and salesmen, four or more individuals performed services for him for some portion of a day in twenty or more calendar weeks in 1966 and thereafter. Thomas E. Beal had a determination from the United States Department of the Treasury that he was not required to withhold federal payroll tax or to withhold under the Federal Insurance Contributions Act with respect to his salesmen and solicitors. Thomas E. Beal and his salesmen all considered salesmen to be independent contractors. He did not provide office space for his salesmen; however, telephones were available for their use.

Roy Willey, Inc., had eleven licensed salesmen, eight of whom were actively engaged in selling real estate. Such salesmen were associated with Willey, Inc., by contract, the nature of which was to treat the salesmen as independent contractors. Willey, Inc., maintained an office in Columbia, Missouri, in the conduct of its business, and made available desks and telephones for the convenience of its salesmen in addition to other desks and telephones for use of its nonsales persons and officers. Willey, Inc., also withheld no federal or state income and social security taxes and maintained no workmen's compensation insurance.

The remainder of the pertinent facts are common to both Thomas E. Beal and Roy Willey, Inc.: Real estate salesmen were not required to spend any time in the office or to attend meetings; services were generally performed outside the office, sales were usually closed in homes and the contracts brought to the broker or broker's office where the transactions were completed and salesmen received their commissions; salesmen were not reimbursed for expenses, nor were they furnished automobiles, drawing accounts, or expense accounts; salesmen were not required to make any certain number of calls, nor were sales quotas established; compensation was solely by commission on completed sales; salesmen had no specific hours and could engage in other occupations.

Pertinent sections of the Missouri Employment Security Law are:

288.032. 'Employer' means:

'(1) Any employing unit which for some portion of a day, in each of twenty different calendar weeks, within a calendar year, had in employment, but not necessarily simultaneously, four or more individuals * * *.'

288.034. 'Employment' means:

'(1) Service, including service in interstate commerce, performed for wages or under any contract of hire, * * *.

'(2) The term 'employment' shall include an individual's entire service, performed within or both within and without this state if

'(a) The service is localized in this state; * * *

'(5) Service performed by an individual for wages shall be deemed to be employment subject to this law unless it is shown to the satisfaction of the division 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 service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all places of business of the enterprise for which such service is eprformed; and

'(c) Such individual is customarily engaged in an independently established trade, occupation, profession or business.'

'288.036. 'Wages' means all remuneration payable or paid, for personal services including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash.'

Effective October 13, 1965, Subsection (5), Section 288.034 was amended to read:

'Irrespective of the usual tests for determining the existence of the independent contractor relationship as at common law, service performed by an individual for wages shall be deemed to be employment subject to this law unless it is shown to the satisfaction of the division that (See (a), (b), (c) above).'

Also pertinent are certain sections from Chapter 339, RSMo. 1969, 'Real Estate Agents and Brokers':

339.010. '1. A 'real estate broker' is any person, copartnership, association or corporation, foreign or domestic, who advertises, claims to be or holds himself out to the public as a real estate broker or dealer and who for a compensation or valuable consideration, as whole or partial vocation, sells or offers for sale, buys or offers to buy, exchanges or offers to exchange the real estate of others; or who leases or offers to lease, rents or offers for rent the real estate of others; or who loans money for others or offers to negotiate a loan secured or to be secured by a deed of trust or mortgage on real property.

'2. A 'real estate salesman,' within the meaning of this chapter, is any person, who for a compensation, or valuable consideration becomes associated, either directly or indirectly with a real estate broker to do any of the things above...