Holland v. Altmeyer, Civil Action No. 1033.

• Decision Date: 31 May 1945
• Docket Number: Civil Action No. 1033.
• Citation: 60 F. Supp. 954
• Parties: HOLLAND v. ALTMEYER et al., Social Security Board.
• Court: U.S. District Court — District of Minnesota

60 F. Supp. 954

HOLLAND v. ALTMEYER et al., Social Security Board.

Civil Action No. 1033.

District Court, D. Minnesota, Fourth Division.

May 31, 1945.

Charles S. Kidder (of Orr, Stark & Kidder), of St. Paul, Minn., for petitioner.

Victor E. Anderson, U. S. Atty., and Linus J. Hammond, Asst. U. S. Atty., both of St. Paul, Minn., for defendants.

NORDBYE, District Judge.

The above cause came before the Court on defendants' motion for a summary judgment on the grounds that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law and for judgment in accordance with Section 405(g), Title 42 U.S. C.A., affirming the decision of the Social Security Board, and as to which the petitioner herein has proceeded to obtain a review.

The facts appearing in the record and which seem relevant are as follows: When the petitioner herein resigned in April, 1942, from his position as District Agent for the State Farm Mutual Insurance Company at Bloomington, Illinois (hereinafter called the Bloomington Company), he applied for, and was granted, the "Primary Insurance Benefits" contemplated by Section 202(a) of the Social Security Act, 42 U.S.C.A. § 402(a). He also applied for, and was granted, on behalf of his two minor daughters, the "Child's Insurance Benefits" contemplated by Section 202(c) of the Act, 42 U.S.C.A. § 402(c). At or about the time the petitioner resigned as District Agent for the Bloomington Company, he purchased a general agency writing insurance for the Farmers Mutual Automobile Insurance Company of Madison, Wisconsin (hereinafter called the Madison Company). This agency was sold to plaintiff with the consent of the Madison Company, and in appointing the petitioner District Supervisor for that company, a letter of appointment was issued which sets forth in some detail the duties of the District Supervisor. This letter was in the following form:

"Farmers' Mutual Automobile Insurance Co. "312 Wisconsin Ave "Madison, Wisconsin. "April 21, 1942 "Mr. J. H. Holland "Pine City, Minnesota.

"Dear Mr. Holland:

"Your license authorizing you to represent our Company in the State of Minnesota has already been sent to you.

"This letter will serve to notify you officially of your appointment as District Supervisor effective April 1, 1942.

"Your principal duties are as generally outlined on page 3 of your rule book and are as follows: It will be your duty to appoint (subject to Home Office review and approval), train, supervise, and service all agents in the district assigned to you and to do any and all things necessary to maintain and increase the volume of business in your territory.

"It will also be your duty to perform for any and all of our insureds the usual services on claims — for example: to provide loss reports; in the event of a loss to put our insured in touch with our nearest claim representative; and to see that all of your agents are properly servicing the losses of our insureds in their respective territories; and to perform such claim duties as they may be called upon to perform from time to time by the Home Office.

"It will also be your duty to educate agents in the proper selection of risks and to handle an occasional inspection of individual risks as may be requested by the Underwriting Department.

"It will also be your duty to assist the Accounting Department whenever assistance is requested by them to keep agents' accounts up to date, and further to inform the Accounting Department when in your opinion there are circumstances surrounding an agent's habits, etc., which may eventually lead to difficulty for the Company in collecting accounts current or other funds due the Company.

"Periodically new rules, regulations, or commission scale adjustments will necessarily be formulated by the Company, and it will be your duty to abide by them and to instruct your agents regarding any new rules, regulations or commission scale adjustments as they are issued.

"Your compensation for all services rendered for the Company will be an overwriting commission of 6% on all premiums developed and produced by the agents in your district. This includes both new and renewal business. You will undoubtedly produce business for our Company through your own agency. Your commission on this personally-produced business is the same as paid to local agents as outlined on page 7 of the rule book as follows:

"First six months — 20% of gross premiums

"Second six months — 10% plus reinstatement fee, if any

"Thereafter — 10% plus reinstatement fee, if any.

"In addition you will receive your regular overwriting commission of 6% on business which you develop yourself.

"The following territory is being assigned to you and will comprise your district:

"Chisago County "Isanti County "Mille Lacs County "Kanabec County "Pine County "Morrison County "Crow Wing County "Aitkin County "Carlton County

"We sincerely hope that your new duties as outlined herein will be to our mutual benefit.

"Your very truly "Signed Karl Brecht "Karl Brecht "Agency Supervisor."

After entering upon his appointment as District Supervisor for the Madison Company, and during the month of June, 1942, by reason of his employment by that company, the petitioner received more than $15 in income for that month. Because of this income, the Bureau of Survivors and Old Age Benefits declared that Holland and his children were ineligible for the primary and child benefits for that or any other month in which income in a like amount was received. Because of the Bureau's ruling, he sought, and was granted, a hearing before the Referee. The Bureau's decision was sustained. The matter was then taken to the Appeals Council of the Social Security Board, which adopted and affirmed the Referee's decision. The matter has been brought to this Court by virtue of the section (42 U.S.C.A. § 405(g), which vests review jurisdiction in this Court in the following terms and to the following extent:

"Any individual, after any final decision of the Board made after a hearing to which he was a party, * * * may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Board may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides. * * * The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Board, with or without remanding the cause for a rehearing. The findings of the Board as to any fact, if supported by substantial evidence, shall be conclusive, * * *. The court * * * may, at any time, on good cause shown, order additional evidence to be taken before the board, * * *."

Petitioner now contends that this jurisdiction should be exercised to rectify the errors which he claims were made by the Board when it held that he was an employee of the Madison Company and therefore not entitled to the benefits which his employment with the Bloomington Company occasioned.

The Referee's decision, being the only written one and having been adopted by the Appeals Council, apparently expresses the decision of the Board. The pertinent portions of the Referee's decision will be found in the following summarization:

"* * * The right to discharge was quite patently possessed by the company. There are also a number of signs of control by the company as to how the work shall be done. It must be done in accordance with the rules and regulations of the company. On behalf of the company the wage earner was to exercise supervision and give training to all of the subordinate agents in his territory. He was to assist the accounting department in keeping agents' accounts up to date. In other words, he was to receive specific instructions as to particular accounts that came within the scope of his work. The wage earner was to perform for the insureds numerous services on claims, such as providing loss reports, putting the insured in touch with the nearest claim representative, and following up the subordinate agents to see that they were properly servicing the losses of the insureds. Further, he was to perform such claim duties as he might be called upon to perform from time to time by the home office. This latter is a very definite instance of a reservation by the company of the right to control and direct the individual performing services.

"Stationery of the company was provided to the wage earner and he merely added his own name as district supervisor to this letterhead. On his business card he described himself as district supervisor of the company. While he was probably known to the general public as writing a considerable variety of insurance lines, he did not have an office or did not put out literature holding himself out as an independent broker in insurance. It would be quite possible for him to represent certain companies in such a manner as to be an independent contractor with respect to those companies and, yet, to be with respect to another company an employee. The very title of his position, `district supervisor,' is one more likely to be used to describe an official of the company having with respect to it the status of an employee. That he was paid by commission is not persuasive on one side or the other. * * *."

The Referee found that these facts sufficiently established that "certain extent" of control and that "certain number" of the usually recognized earmarks of an employer and employee...