A. J. Meyer & Co. v. Unemployment Compensation Com'n

• Decision Date: 18 April 1941
• Docket Number: 37397
• Citation: 152 S.W.2d 184,348 Mo. 147
• Parties: A. J. Meyer & Company, Appellant, v. Unemployment Compensation Commission of Missouri, and William F. Metz
• Court: Missouri Supreme Court

152 S.W.2d 184

348 Mo. 147

A. J. Meyer & Company, Appellant, v. Unemployment Compensation Commission of Missouri, and William F. Metz

No. 37397

Supreme Court of Missouri

April 18, 1941

Rehearing Denied June 12, 1941.

Appeal from Circuit Court of City of St. Louis; Hon. Eugene L Padberg, Judge.

Reversed and remanded (with directions).

Robert L. Maul for appellant.

(1)The appellant contends that the appellate court has power to review a finding and decision made by the Unemployment Compensation Commission of Missouri allowing benefits when there is no competent evidence in the record to support such finding and decision.Maltz v. Jackoway-Katz Cap Co.,336 Mo. 1000, 82 S.W.2d 909;State ex rel. M K. & T. Railroad v. Public Serv. Comm.,227 Mo. 175, 210 S.W. 386;Laws 1937, Mo. Unemployment Comp. Law, sec. 11-i.(2) The only conclusion of law under the facts in evidence is that respondent Metz was operating as an independent contractor and was not an employee in employment of appellant within the purview of the Missouri Unemployment Compensation Law.(a) At common law salesmen associated with appellant under the same circumstances and on the same basis as respondent Metz are independent contractors.(b)Statutes are not to be construed as changing the common law unless the purpose to effect such change is clearly expressed therein.(c) An interpretation of the Unemployment Compensation Law of Missouri, more particularly Sections 3-i-1and3-i-5-A, B and C thereof, does not extend the meaning of the term "employment" to include independent contractors and others not within the employee-employer relationship as such relationship is known at common law.Kohler v Meyers,21 F.2d 596;Fuller Brush Co. v. Industrial Comm. of Utah,104 P.2d 201;Wisconsin Bridge & Iron Co. v. Ramsay,233 Wis. 467, 290 N.W. 199;Washington Recorder Pub. Co. v. Ernst,199 Wash. 176, 91 P.2d 718;Vert v. Met. Life Ins. Co.,342 Mo. 629, 117 S.W.2d 252.(3)Appellant contends that under the evidence, which shows conclusively that salesmen associated with appellant on the same basis as respondent Metz were held to be not employees of appellant and appellant held to be free from liability for taxes under Titles VIII and IX of the Federal Social Security Act on any remuneration received by such salesman; that the finding and decision of the commission and the judgment of the circuit court confirming and approving the same are contrary to and in direct violation of Section 5-K of the Missouri Unemployment Compensation Law and contrary to the letter and spirit of such law.State of Missouri v. Earhart,111 F.2d 992;Laws 1937, p. 574, sec. 5-K, Mo. Unemployment Comp. Law 584;Sec. 5-K, Mo. Unemployment Comp. Law, amended, Laws 1939, p. 892.(4)Appellant contends that it was the intention of the Missouri Legislature in adopting the Missouri Unemployment Compensation Law that the same be interpreted and administered in harmony with the United States Social Security Act and that it be administered in cooperation with the Social Security Board of the United States of America.State of Missouri v. Earhart,111 F.2d 992;Laws 1937, p. 574, Sec. 5-K, Mo. Unemployment Comp. Law, 584;Sec. 5-K, Mo. Unemployment Comp. Law, amended, Laws 1939, p. 892.(5) Said Missouri Unemployment Compensation Law, enacted in 1937, approved June 17, 1937, and as amended in 1939, which, in substance, provides for the collection of a tax from employers of eight or more persons, the establishment of a fund from said tax, the use of said fund to pay benefits to employees who, through no fault of their own, become unemployed, and for the establishment of a commission to administer said Unemployment Compensation Law, is in its entirety unlawful, unjust, unreasonable, void and unconstitutional and in violation of Article X, Section 3, of the Constitution of the State of Missouri, which section and article, in substance, provides that taxes may be levied and collected for public purposes only.Mo. Const., Art. X, Sec. 3;State ex rel. Garth v. Switzler,143 Mo. 287, 45 S.W. 245;Simmons Medicine Co. v. Ziegenhein,145 Mo. 368;Jennings v. St. Louis, 332 Mo. 173, 58 S.W.2d 979.

Harry G. Waltner, Jr., and Edward D. Summers for respondents.

(1) The findings of fact of the Commission in any contested benefit appeal are conclusive if supported by competent evidence.Sec. 11(i), Unemployment Comp. Law, Laws 1937, p. 594;Sec. 3342, R. S. 1929;Kemmerling v. Karl Koch Erecting Co.,338 Mo. 252, 89 S.W.2d 674;Hammack v. West Plains Lbr. Co.,224 Mo.App. 570, 30 S.W.2d 650.(2) The Unemployment Compensation Law is remedial in nature and should be liberally construed to the end that the harmful effects of unemployment may be alleviated.Sec. 2, Unemployment Comp. Law, Laws 1937, p. 574;59 C. J., p. 1106, sec. 657;Endlich, Interpretation of Statutes, p. 142, sec. 108;Young v. Bureau of Unemployment Compensation, etc.,10 S.E.2d 412.(3) The definition of "employment" prescribed by the Unemployment Compensation Law is more inclusive than the master and servant relationship.Sec. 3, Unemployment Comp. Law, Laws 1937, p. 575;Old Colony Railroad Co. v. Commr. of Internal Revenue,284 U.S. 552, 52 S.Ct. 211, 76 L.Ed. 484;Gall, 3 Law & Contemporary Problems(1936), p. 122;Globe Grain & Milling Co. v. Industrial Comm.,91 P.2d 512;Nudelman v. Thimbles, Inc.,225 Mo.App. 553, 40 S.W.2d 475;State ex rel. Carroll v. Becker,329 Mo. 501, 45 S.W.2d 533;McDermott v. State,196 Wash. 261, 82 P.2d 568;Fuller Brush Co. v. Industrial Comm. of Utah,104 P.2d 201.(4)The Legislature did not intend that the Missouri Unemployment Compensation Law should be construed in conformity with the rulings of all the Federal Agencies charged with administration of the Social Security Act.Murphy v. Hurlbut Undertaking & Embalming Co.,142 S.W.2d 449;Park Floral Co. v. Industrial Comm.,104 Colo. 350, 91 P.2d 492.(5) A showing to the satisfaction of the Commission in conformity with all three tests set out by Section 3 (i)(5) is a prerequisite to exemption from coverage under the law.Industrial Comm. v. Northwestern Mut. Life Ins. Co.,103 Colo. 550, 88 P.2d 556;McKinley v. Payne & Son Lbr. Co.,143 S.W.2d 38;Industrial Comm. v. Equitable Life Ins. Co.,95 P.2d 4;Singer Sewing Machine Co. v. Oregon Unemployment Comp. Comm.,103 P.2d 708;Creameries of America v. Industrial Comm.,102 P.2d 300;In the Matter of Schomp and Board of Review v. Fuller Brush Co.,12 A.2d 702;Unemployment Comp. Comm. v. Jefferson Standard Life Ins. Co.,215 N.C. 479, 2 S.E.2d 584.(6) The evidence in this case clearly supports the findings of the Commission.Maltz v. Jackoway Katz Cap Co.,336 Mo. 1000, 82 S.W.2d 909.(7) The Unemployment Compensation Law does not contravene Section 3, Article X of the Missouri Constitution, which requires that taxes shall be levied for public purposes only.Sec. 6 (C), Unemployment Comp. Law, Laws 1937, p. 585;State ex rel. Crandall v. MacIntosh,205 Mo. 589, 103 S.W. 1078;DeMay v. Liberty Foundry Co.,327 Mo. 495, 37 S.W.2d 640;Oren v. Swift & Co.,330 Mo. 869, 51 S.W.2d 59;Carmichael v. So. Coal & Coke Co.,301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245, 109 A. L. R. 1327;Beeland Wholesale Co. v. Kaufman,234 Ala. 249, 174 So. 516;Tatum v. Wheeless,180 Miss. 800, 178 So. 95;W. H. H. Chamberlain, Inc., v. Andrews,271 N.Y. 1, 2 N.E.2d 22;State ex rel. Excelsior Springs v. Smith,336 Mo. 1104, 82 S.W.2d 37;Jennings v. St. Louis, 332 Mo. 173, 58 S.W.2d 979, 87 A. L. R. 365.

E. R. Morrison and Delos C. Johnsamici curiae;

Morrison, Nugent Berger, Byers & Johns of counsel.

(1) Under established common-law rules claimant was not an employee but an independent contractor and the court erred in refusing to so rule.Barnes v. Real Silk Hosiery Mills,341 Mo. 563, 108 S.W.2d 58;Vert v. Met. Life Ins. Co.,342 Mo. 629, 117 S.W.2d 252;Snowwhite v Met. Life Ins. Co.,344 Mo. 705, 127 S.W.2d 718;Gosney v. Met. Life Ins. Co.,114 F.2d 649;Kourik v. English,340 Mo. 367, 100 S.W.2d 901;Mary Ross v. St. Louis Dairy Co.,339 Mo. 982, 98 S.W.2d 717;Skidmore v. Haggard,341 Mo. 837, 110 S.W.2d 726;Rutherford v. Tobin Quarries,336 Mo. 1171, 82 S.W.2d 918;Coul v. Peck D.G. Co.,326 Mo. 870, 32 S.W.2d 758.(2)The court erred in refusing to hold that the term "employment" as used in the act means the relationship of master and servant and that paragraph (1) of subsection 3 (i) which defines "employment" in the common-law sense is controlling.Maltz v. Jackoway-Katz Cap Co.,336 Mo. 1000, 82 S.W.2d 909;Rutherford v. Tobin Quarries,336 Mo. 1171, 1178, 82 S.W.2d 918;Hill Hotel Co. v. Kinney,295 N.W. 397;Stein v. Battenfeld Oil & Grease Co.,327 Mo. 804, 39 S.W.2d 345;Glaser v. Rothschild,221 Mo. 180, 120 S.W. 1, 22 L. R. A. (N. S.) 1045;Behre v. Hemp & Co.,191 S.W. 1038;Texas Co. v. Wheeless,187 So. 880, 185 Miss. 799;Fuller Brush Co. v. Industrial Comm. of Utah,104 P.2d 201;Washington Recorder Pub. Co. v. Ernst,199 Wash. 76, 91 P.2d 718;Barnes v. Indian Refining Co.,134 S.W.2d 620, 280 Ky. 811;Wisconsin Bridge & Iron Co. v. Ramsay,233 Wis. 467, 290 N.W. 199.(3) The Federal Social Security Board wrote Section 3(i) and intended, and so represented, that it covered only employees in the common-law sense.Secs. 902, 907-C, Federal Security Act;Arts. 205, 211, Regulations 90 (Feb. 17, 1936) Excise Tax for employers under Title IX of the Social Security Act.(4)The court erred in construing paragraph (5) of subsection 3 (i) as a definition of the persons who are included in the act.Fuller Brush Co. v. Industrial Comm. of Utah,104 P.2d 201;Logan-Cache Knitting Mills v. Industrial Comm.,102 P.2d 495;Washington Recorder Pub. Co. v. Ernst,199 Wash. 176, 91 P.2d 718;Rutherford v. Tobin Quarries,...