Glielmi v. Netherland Dairy Co.

• Decision Date: 03 June 1930
• Citation: 254 N.Y. 60,171 N.E. 906
• Parties: GLIELMI v. NETHERLAND DAIRY CO. Inc., et al.
• Court: New York Court of Appeals Court of Appeals

254 N.Y. 60

171 N.E. 906

GLIELMI

v.NETHERLAND DAIRY CO. Inc., et al.

Court of Appeals of New York.

June 3, 1930.

Proceeding under the Workmen's Compensation Act by Nicholas Glielmi, claimant, opposed by the Netherland Dairy Company, Incorporated, employer. From an order (228 App. Div. 729, 238 N. Y. S. 838) of the Appellate Division reversing an award of the State Industrial Board and dismissing the claim, the State Industrial Board appeals.

Order of Appellate Division reversed, and award affirmed.

Appeal from Supreme Court, Appellate Division, Third department.

Hamilton Ward, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for appellant.

Roland Ford, of Albany, and Oscar J. Brown, of Syracuse, for respondent.

CARDOZO, C. J.

The question to be determined is whether claimant was a servant within the meaning of the Workmen's Compensation Act (Consol. Laws, c. 67), and so entitled to an award.

The Netherland Company, Incorporated, was the owner of a dairy in the city of Syracuse. Its business was divided into routes, and separate routes were allotted to separate salesmen. One of these routes, described as No. 43, went to the claimant, Glielmi, who was employed under a written contract. By this contract, which describes him as a salesman, he is given the privilege of making sales of milk and cream along the route allotted to him and no other; he is to make daily payments of cash for any milk disposed of, retaining for himself four cents per quart for milk and three cents per half pint for cream, the percentage to be reduced if there is a reduction of the retail price; he is to sell the company's products, and not those of its competitors; he is to use the company's horses and vehicles exclusively, paying a stated price per day for its wagon and its horses; he is to have the privilege of returning any milk or cream unsold; if cash is not received, he may require the company to assume and collect for a fee the monthly accounts of responsible customers; he is to obey the orders of the company as to the care of the horses and the wagon; he is to permit the company's representative to ride with him at any time and supervise his handling of the route; he is to assume liability for loss or breakage, and is to make a deposit with the company as security for full performance; he is to be employed for a term of twelve months, but he may terminate the employment upon a notice of three weeks, and the company upon its side may put an end to it at will.

Claimant, while driving a wagon in accordance with this contract, was thrown out and injured. The State Industrial Board held him to be a servant, and made an award of compensation. The Appellate Division held that he was either a bailee or a joint adventurer or an independent contractor, but in no event a servant, and so dismissed the claim. An appeal by the State Industrial Board brings the case to this court.

We think there is evidence to sustain the finding of the board that claimant was a servant,employed to sell the milk and cream of his employer in return for a commission. The contract is adroitly framed to suggest a different relation, but the difference is a semblance only, or so the triers of the facts might find. There is significance in the very description of the claimant; he is to be ‘a salesman,’ not a jobber. He is to travel a prescribed route; to use an allotted horse and wagon; to submit to supervision at the pleasure of his employer, and to hold himself subject to discharge at will. The milk and cream that he vends does not belong to him. He vends it for the company. What he does not dispose of he returns, and, if he withholds the proceeds of a sale in excess of his commission, he takes something not his own. In the event of a sale on credit, or a failure to collect the cash, he is accountable at the end of the day as if cash had been received, but the company will relieve him of the guaranty and assume the collection of the accounts, if the customers are good. We may be sure that seldom, if ever, will he choose to give a term of credit, unless satisfied that the favored customer is approved by his employer. Much of his apparent freedom is in truth apparent only. He may sell for a price in excess of the schedule made known to the public; but it is plain that, if he tries to do so, the customers will refuse to buy. Indeed, the witnesses for the employer very frankly concede that a sale above the schedule was a...