In re Hillman Inv. Co.

• Decision Date: 24 November 1942
• Docket Number: 28804.
• Citation: 131 P.2d 160,15 Wn.2d 452
• Parties: In re HILLMAN INV. CO.
• Court: Washington Supreme Court

131 P.2d 160

15 Wn.2d 452

In re HILLMAN INV. CO.

No. 28804.

Supreme Court of Washington

November 24, 1942

Department 2.

Proceeding in the matter of the eligibility of purported employees of Hillman Investment Company, a corporation, to unemployment compensation. From a judgment of the Superior Court upholding the administrative determination that the three claimants were eligible, the employer, the Hillman Investment Company a corporation, appeals.

Affirmed.

Appeal from Superior Court, King County; Howard M. Findley, judge.

Clarence L. Gere, of Seattle, for appellant.

Smith Troy, George W. Wilkins, and John F. Lindberg, all of Olympia, for respondent.

DRIVER Justice.

This action involves the eligibility of three claimants to unemployment compensation. The administrative determination that all of them were eligible was sustained in successive appeals which carried the case to the superior court. That court also upheld the decision in favor of the claimants, and the employer, the Hillman Investment Company, a corporation has appealed to this court.

Appellant contends that the court erred in holding, first, that the claimants were eligible employees; and, second, that the Hillman Investment Company was an employer under the unemployment compensation act. Chapter 162, Laws of 1937, p 574, Rem.Rev.Stat. (Sup.) § 9998-101 et seq.

The material facts are fully stated in the following excerpts from the findings of fact made by the appeal examiner:

Hillman Investment Company, a corporation, has been engaged, during all years in question, in the business of developing and selling real estate. In 1935 the company had on its hands literally thousands of parcels of property located in Snohomish and King Counties, with an annual tax burden of around $35,000. At the time there was not a ready market for unimproved real estate and to liquidate this property and reduce its taxes the company embarked on a rather extensive building program. * * *

'In this construction work the company used the services of the three claimants and of many other skilled workmen, such as carpenters, well-diggers, masons, painters, floor sanders, plumbers, plasterers, etc. Without exception, all persons engaged in this work were purchasers of property under land contracts with the company. All received part of their pay, usually fifty per cent, in cash and the balance was applied on their contracts. Except for the type of services performed, the arrangements with the three claimants were substantially the same as those with all other workmen.

'Claimant Charles H. McCann had been a flyer by occupation and spent about twenty-two years in the service of the Federal government prior to 1935. He then bought a piece of property from the company and it became necessary for him to sink a well near his house. He had had no experience in well-digging Before this time but, with the assistance of a neighbor and by means of the 'willow witch' method, was successful in locating water. After then helping another neighbor bring in a well, the word apparently got around that McCann was something of an expert in this line, and in the summer of 1938 Mr. Warren engaged him to locate and dig wells for the company.

'Part of McCann's remuneration was based on the depth to which he was required to dig each well. At first he was allowed $2.50 a foot--$1.50 cash and $1.00 credit on his contract. Out of this sum he paid his helper, also on a footage basis. Later, this arrangement was modified to provide for a payment of $1.50 per foot to McCann and the company paid all wages to the helper. After January 10, 1939, the company paid all helpers' wages at the rate of $3.00 or $4.00 a day rather than on a footage basis.

'In addition to this allowance, the company paid McCann for the time spent in locating the flow of water and constructing the well housings. The company also paid the transportation costs of both McCann and his helpers and supplied him with all necessary materials such as wire, powder, lumber, concrete and electrical fuses. The company furnished the necessary windlass and cables and paid for the sharpening of whatever tools were furnished by McCann, such as picks, shovels, etc. He has not engaged in well-digging since his connection with the company was terminated on January 4, 1940. * * *

'The next case to be considered is that of claimant Lawrence Jones, who is a plumber by occupation. Early in 1938 he purchased a home from the company and a short time later, on May 12, entered into an agreement * * * which recites:

"That Whereas: the first party (the company) desires the services of a plumber in the construction of certain buildings and whereas the second party (Jones) is an experienced plumber.

"It is Therefore Understood and Agreed as Follows:

"The second party will under the sole direction of the first party supply and furnish all labor necessary in roughing in the plumbing, and setting and installing all fixtures, including septic tank, in such buildings as indicated and directed by the first party. All work to be done in a first class workmanship manner and subject to the approval of the first party.' (Italics ours.)

'The agreement also sets forth the pay scale for each type of house, depending on its size, and provides for certain additional allowances for sinks, boilers, extra drains, etc. The fifth and sixth paragraphs are as follows:

"It is also understood and agreed that ditch digging and the digging of holes for septic tanks shall be paid for by the first party in addition to the above at a rate not to exceed 50¢ per hour. * * *

"Payments as above shall be made to second party or his helper as follows: one-half cash and one-half to be applied on Real Estate Contract covering the property that the second party is purchasing from the first party.'

'Except for certain modifications not important here, this agreement was in effect during the entire period of Jones' employment, which was terminated February 1, 1941. In the performance of this work Joes supplied all his own tolls, but materials Jones supplied all his own tools, but materials company. The digging of ditches and holes for septic tanks was done by Jones' stepson, who was paid fifty cents an hour. Pursuant to the terms of the agreement, half of this amount was applied on Jones' contract and the other half paid in cash by the company through Jones.

'At times it became necessary for Jones to use assistants in the actual plumbing work. These men were supplied by Mr. A. T. Nelson, who was in charge of the construction of certain store buildings for the company at Lake City. The company paid the helpers on an hourly basis, but the evidence is in conflict as to whether or not the amounts were charged back to Jones. The weight of the evidence, we believe, establishes that all payments to the helpers other than his stepson were charged back.

'While installing plumbing in the store buildings Jones worked the same hours--8 A. M. to 4:30 P. M.--as the other workmen on the job and was under the direction of Nelson. Whether or not he worked on a particular day depended of course upon the progress being made with the building by the other workers. * * *

'We shall now consider the status of claimant Willard G. Murch. Murch, a carpenter, was hired by Mr. Warren in September, 1939 and was engaged in the construction of both stores and houses for the

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