Beth Weber, Inc. v. Murphy
| Decision Date | 17 January 1945 |
| Docket Number | No. 28020.,28020. |
| Citation | 389 Ill. 60,58 N.E.2d 913 |
| Parties | BETH WEBER, Inc., v. MURPHY, Director of Labor. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Cook County; Michael Feinberg, judge.
Proceeding by Beth Weber, Incorporated, against Francis B. Murphy, Director of Labor, to review a decision of the director making an assessment for contributions alleged to be due under the Unemployment Compensation Act. From a judgment confirming the decision, the plaintiff appeals.
Reversed and remanded with directions.
Myer H. Gladstone, of Chicago, for appellant.
George F. Barrett, Atty. Gen. (William C. Wines, of Chicago, of counsel), for appellee.
This cause arises upon an appeal from a judgment of the circuit court of Cook county confirming a decision of the Director of Labor in an unemployment compensation case, upon which judgment was entered against appellant for contributions in the sum of $537.64.
The facts are not in dispute. A stipulation was entered into at the hearing before the Director that the appellant was not an employing unit liable for the payment of contributions in 1942; that the present question was whether or not the appellant had six or more persons in its employ within twenty different calendar weeks in either of the years 1940 and 1941. The issue was whether or not an alteration woman who did alteration work on the premises of the appellant in 1940 and 1941 was employed by the appellant corporation within the meaning of the Illinois Unemployment Compensation Act.
The sole testimony offered was that of Beth Weber, the president of the appellant corporation. It appeared that, during the years in question, Arlyne Berg was a dressmaker and fitter. Appellant operated a retail dress store in Chicago during these particular years. Prior to this, Beth Weber had engaged in the retail dress business from her apartment, at which time an arrangement was entered into with Mrs. Berg whereby the latter agreed to and did perform fitting and alteration work on the garments sold by Miss Weber. In addition thereto, Mrs. Berg did alteration work for her own customers, using the premises of Miss Weber for this purpose.
When the corporation began its operation a similar arrangement was followed between the corporation and Mrs. Berg. The latter was alloted a section of the balcony, overlooking the sales floor of the corporation, which was just large enough for a sewing machine and a small table. There, Mrs. Berg performed her alteration and fitting work for the customers of appellant and, likewise, her own customers. A sign which bore the name of Arlyne Berg and the legend ‘Fitter’ hung on the balcony and was visible to persons who entered the salesroom from the outside but could only be seen as one entered the door. This sign was not visible to persons on the outside of the store or after an entrance was made into the salesroom. There was no rental arrangement entered into with respect to the space Mrs. Berg occupied, the agreement being that she was to service the customers of the shop as compensation for the space occupied. Mrs. Being furnished her own Singer sewing machine, thread and working materials.
Upon a purchase being made by a customer, Mrs. Berg was called to look at the dress and, if the item needed alteration, Mrs. Berg made the necessary measurements, set the price for the alterations and did the work of the alteration. The price charged by Mrs. Berg was added to the price of the merchandise and appellant collected the cost of the garment, sales tax and cost of alteration, giving an itemized receipt to the customer. If additional material, trimming, fittings or findings were needed, they were supplied by Mrs. Berg at her cost and same included in the cost of alteration. At the end of a week, Mrs. Berg presented an account to the appellant of Moneys due her and was paid by appellant.
There were no time regulations concerning the hours of work and Mrs. Berg was free to come and go when she wished. During busy seasons, she employed a woman to help her, the expense of which was paid by her and not by the appellant. This arrangement existed during the years 1940 and 1941. The witness testified that no control was exercised with regard to the hiring of such persons; that no records were kept of the wages paid by Mrs. Berg to her assistants and that all records and accounts of Mrs. Berg were kept by her, separate and distinct from the records of the appellant.
During this time, Mrs. Berg was not listed in the telephone book as a fitter, did no advertising, had no business cards or stationery and, even though the customers failed to pay appellant for a garment after having made a down payment thereon, Mrs. Berg was paid for her work done. Sometimes it occurred that Mrs. Berg was required to redo alteration work free of charge.
In addition to the association of Mrs. Berg, appellant leased out a portion of the store to a millinery shop for which a straight rental agreement was made and for which appellant had no responsibility for the satisfaction of customers who purchased from such millinery department. The appellant did, however, have a very definite concern with the competency of the alteration work and, to a certain extent, held itself responsible for it. It was admitted that it was not possible to run a dress shop without an alteration department.
The arrangement between the appellant and Mrs. Berg was purely oral, appellant having a right to terminate the relationship if it ever became unfriendly or unsatisfactory to customers. This is exactly what happened in the case of Mrs. Berg. Sometime during 1942, Miss Weber began receiving complaints from customers concerning Mrs. Berg's attitude. Miss Weber testified that Mrs. Berg became irritable, that she argued with Miss Weber and the customers and was not fitting clothes the way they should be fitted; that thereupon a discussion was had with Mrs. Berg relative to a correction of her attitude and when it became apparent that such improvement could not be secured, Miss Weber informed Mrs. Berg that the latter would have to leave. The appellant considered that it was responsible, to a certain extent, if an alteration was done unsatisfactorily even though the responsibility itself was entirely up to the fitter. Appellant had a very definite concern with the...
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