Irvin v. Hobby, Civ. No. 707.

• Decision Date: 13 May 1955
• Docket Number: Civ. No. 707.
• Parties: Mrs. Kathryn A. IRVIN, Plaintiff, v. Ovetta Culp HOBBY, as Secretary of the Department of Health, Education and Welfare and Commissioner of Social Security of the United States of America, Defendant.
• Court: U.S. District Court — Northern District of Iowa

131 F. Supp. 851

Mrs. Kathryn A. IRVIN, Plaintiff, v. Ovetta Culp HOBBY, as Secretary of the Department of Health, Education and Welfare and Commissioner of Social Security of the United States of America, Defendant.

Civ. No. 707.

United States District Court N. D. Iowa, E. D.

May 13, 1955.

Ray E. Clough, of Clough & Clough, Mason City, Iowa, for plaintiff.

F. E. Van Alstine, U. S. Dist. Atty., Sioux City, Iowa, for defendant.

GRAVEN, District Judge.

On April 30th, 1954, the defendant rendered a decision denying the plaintiff benefits under the Old-Age Insurance provisions of the Federal Social Security Act. 42 U.S.C.A. § 401 et seq. This is an action brought by the plaintiff under Section 405(g) of 42 U.S.C.A. to review that decision. The plaintiff is a resident of this judicial district. The defendant made a motion for summary judgment which is here considered.

The plaintiff was born September 30, 1887. She became a widow in June, 1945. At the time of her husband's death he was a farmer. She had an only child, a daughter named Annette, who prior to 1945 married John L. Connolly. In 1945 the family home of Mr. and Mrs. John L. Connolly was at Elma, Iowa. At the time the plaintiff became a widow John L. Connolly was serving in the armed forces of the United States. The plaintiff upon the death of her husband went to live in the Connolly home at Elma, Iowa. She lived in the Connolly home until Mr. Connolly returned from service in December, 1945, and for about a year thereafter. Sometime in 1947 Mr. and Mrs. Connolly moved to Waterloo, Iowa, where they had built a home. Mr. Connolly was engaged in the insurance business. The plaintiff continued to live in the premises formerly occupied by Mr. and Mrs. Connolly at Elma, Iowa. In 1948, at the instance of Mr. and Mrs. Connolly, the plaintiff moved to their home in Waterloo, Iowa. Mr. and Mrs. Connolly were the parents of two minor children. Shortly after the plaintiff moved into the Connolly home Mrs. Connolly commenced gainful employment outside of the home. The plaintiff continued to be in the Connolly home until around September 30, 1952, when she returned to Elma, Iowa. She later returned to the Connolly home for a short period but performed no services in the home. Thereafter she went to Riceville, Iowa, where she now resides. When the plaintiff returned to Elma, Mrs. Connolly discontinued her outside employment.

Prior to January 1, 1951, the plaintiff received some clothes and irregular payments from Mr. and Mrs. Connolly. Starting January 1, 1951, the Connollys started making regular payments to the plaintiff. From January 1, 1951, through September, 1951, the payments were $12.50 per week. Starting October 1, 1951, and continuing through September, 1952, the payments were $20 per week. The regular weekly payments were made to the plaintiff in cash on Friday of each week. The plaintiff reported the amounts paid to her by the Connollys as income in her federal income tax return. Neither Mr. nor Mrs. Connolly claimed the plaintiff as a dependent in his or her income tax return. While in the Connolly home the plaintiff did general housework such as cooking, washing, ironing, sewing, and cared for the two Connolly children. On occasions the plaintiff did baby sitting for the Connollys and answered telephone calls for Mr. Connolly. It appears that neither Mr. nor Mrs. Connolly, to any great extent, directed the plaintiff in connection with her work in their home. On occasions some instructions were given her by Mrs. Connolly and on occasions some instructions were given her by Mr. Connolly. The plaintiff apparently went about her work in the Connolly home as if she were in her own home.

Prior to January 1, 1951, domestic service performed in a private home was not "covered" employment within the provisions of the Social Security Act. By an Act approved August 28, 1950, Public Law 734, and effective January 1, 1951, such service became "covered" employment within the provisions of that Act.

Commencing with the quarter starting January 1, 1951, Mrs. Connolly sent in an Employer's Quarterly Tax Return for Household Employees for each quarter up through the quarter ending September 30, 1952. On September 30, 1952, the plaintiff attained the age 65. The Social Security Act requires six quarters of "covered" employment in order to be "fully insured" under the Act. On September 30, 1952, if her services in the Connolly home constituted employment within the provisions of the Act, the plaintiff had seven quarters of "covered" employment and was "fully insured" under the Act. In the Employer's Quarterly Tax Return for Household Employees sent in, Mrs. John Connolly was given as the employer and the plaintiff as the employee.

On November 14, 1952, the Bureau of Old-Age and Survivors Insurance of the Social Security Administration made the plaintiff an award of an Old-Age Benefit under the Act in the sum of $39.60 per month commencing with the month of October, 1952. The monthly payments were made to the plaintiff through March, 1953, at which time they were stopped. The payments were stopped following the receipt by the Social Security Administration of an anonymous letter questioning the payments to the plaintiff. On September 18, 1953, the Administration notified the plaintiff that it had determined that she was not entitled to the Old-Age Insurance Benefits because the services upon which her claim for benefits was based were not performed under an employer-employee relationship. The Administration requested that the plaintiff refund the sum of $237.60 which had already been paid to her as benefits. The Administration further informed her that if she was not satisfied with this determination she could have a hearing on the matter before a Referee. On October 29, 1953, the plaintiff requested such hearing and on April 21, 1954, a Referee designated by the Administration held a hearing at Osage, Iowa. The plaintiff appeared pro se at that hearing. On April 30, 1954, the Referee filed the following decision:

"Department of "Health, Education, and Welfare "Social Security Administration "Office of Appeals Council "Decision of Referee "In the case of Case No. Claim for "Kathryn A. Irvin 3328-5 Old-Age Insurance Benefits "Claimant and wage earner "XXX-XX-XXXX "Social Security Account No.

"On July 17, 1952 claimant filed application for old-age insurance benefits and she began receiving a monthly benefit of $39.60 effective October 1952. However, effective April 1953 the Bureau of Old-Age and Survivors Insurance of the Social Security Administration suspended claimant's benefits pending investigation of her entitlement. Based on subsequent evidence received, the Bureau determined that claimant was not entitled to benefits and therefore that she had been overpaid for the months of October 1952 through March 1953, and on September 18, 1953 she was requested to refund the amount of the overpayments. Claimant disagrees with this determination. A hearing in which claimant participated was held on April 21, 1954 in Osage, Iowa.

"The Bureau determined that claimant had not acquired the necessary coverage for entitlement to benefits, because the domestic services she rendered for her son-in-law and daughter, Mr. and Mrs. John Connolly, did not constitute `employment' within the meaning of the Social Security Act. Claimant contends, however, that from January 1, 1951 through September 1952 she was an employee of her son-in-law.

"Section 202(a) of the Social Security Act provides that in order for an applicant to be entitled to old-age insurance benefits he or she must be `fully insured,' which means in the present case that the claimant must have been paid at least $50 in wages in at least six different calendar quarters. (See sections 213(a) and 214(a).) Section 209 defines `wages' in general as remuneration for employment. Section 210 of the Act defines `employment' generally as service by an employee for the person who employs him. Whether such an employment relationship exists is to be tested primarily by whether the person who pays the remuneration has the right to control or direct the person who renders the service. (See para. 404.1004(c) of the Regulations.)

"The issue in this case is whether claimant was an employee of her son-in-law.

"The claimant took up her residence with her daughter and son-inlaw in 1948 and since the daughter was employed outside she kept house for them, until the fall of 1952, when she was injured and went to live by herself. She states that she did everything in the home, including washing, ironing and cooking and the care of her two granddaughters (one of kindergarten age). Prior to 1951 she was not paid regularly for this work but was given cash and clothes from time to time. However, in 1951 she decided that she could not meet her bills any longer and her son-in-law agreed to pay her $12.50 per week, which he did all during 1951. She then had a chance to get other domestic employment at $25 a week, whereupon her son-in-law agreed to pay her $20 a week and did so until she left there. She worked six days a week. According to the claimant, the son-in-law sometimes told her what to do but generally instructions were not necessary.

"Claimant states that she was always paid in cash every Friday night and that her son-in-law and not her daughter paid her. She reported these wages for income tax purposes, and the file contains a statement by the son-in-law that neither he nor his wife ever claimed her as a dependent.

"It seems reasonably clear, and it is the finding of the referee, that the claimant was not her son-in-law's employee within the meaning of the Social Security Act. The mark of an employer is that he has the right to give orders. Here there is no definite showing that the son-in-law had a right to give the claimant orders as the result of the arrangement above described. The only testimony in that respect is that

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