McDermott v. State, 27114.

• Decision Date: 12 September 1938
• Docket Number: 27114.
• Citation: 196 Wash. 261,82 P.2d 568
• Parties: McDERMOTT v. STATE et al.
• Court: Washington Supreme Court

82 P.2d 568

196 Wash. 261

McDERMOTT v. STATE et al.

No. 27114.

Supreme Court of Washington

September 12, 1938

Department 1.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Action by Joseph P. McDermott against the State of Washington, as a sovereign state, and others for declaratory judgment establishing the status of the barbers, manicurists and bootblacks performing service in plaintiff's shop under the Unemployment Compensation Act. From an adverse judgment defendants appeal.

Reversed with direction.

G. W Hamilton, Atty. Gen., Harry L. Parr, of Olympia, and Lyle L. Iversen, of Seattle, for appellants.

Joseph P. McDermott, of Seattle, pro se.

L Presley Gill, of Seattle, amicus curiae.

GERAGHTY Justice.

The plaintiff, who conducts a barbershop in the city of Seattle, instituted this action for a declaratory judgment establishing the status of the barbers, manicurists, and bootblacks performing service in his shop under chapter 162, Laws of 1937, p. 574, known as the Washington unemployment compensation act. The state of Washington, the director of the department of social security, the supervisor of the unemployment compensation division of that department, and the attorney general were made defendants.

The case was tried to the court, and a decree was entered adjudging that the persons rendering service in the plaintiff's shop were not engaged in employment as defined in the act. The defendants appeal.

Except for a short intermission prior to 1931, the respondent has conducted a barbershop in the city of Seattle since 1909. At the time of the trial, fifteen barbers, two bootblacks and two manicurists were rendering service in the shop, although it contained only thirteen barber chairs. The respondent testified that, about the time the national recovery act became effective, he entered into 'oral lease agreements' with 'lessee barbers,' the substance of the agreement being that he, as lessor, was to supply each barber with a certain chair, together with all installed barbershop equipment necessary for the practice of barbering, as well as all supplies required; that each lessee barber, as consideration for the use of the chair, equipment, and supplies, agreed to pay to the respondent forty per cent of his gross receipts from barber service performed on the leased chair.

Prior to the making of these oral lease agreements, respondent's shop was conducted on the customary plan under which each barber employed was paid for his service sixty per cent of his gross receipts. The lease agreements continue in force for fifty-two weeks, but are subject to termination by either party on one week's notice. Respondent has a right to suspend the lease without notice under certain conditions.

'If a man did appear on the scene slightly intoxicated, or anything like that, I would tell him that the provisions of the lease was that the barber should comply with the law, and the law says you couldn't be under the influence of liquor, and I am suspending the lease until you come back perfectly sober. That would be the suspension.

'Q. You don't have to give any notice when you want to suspend it? A. Under those circumstances, no. When they have that, liquor on their breath, I don't want them to barber in my shop. * * *

'Q. Do you have any standards of quality for the work in your shop that your barbers have to live up to? A. Every barber that I have is a competent barber. He has passed an examination and demonstrated that he is skillful and sufficiently competent to pass an examination. If it were not so, I could not have him in my employ.'

While a certain chair is leased to a barber, he is not strictly confined to work on that chair, but may move to unoccupied chairs more strategically situated for attracting custom. A barber leasing a chair cannot keep others from using it when he is not employed in the shop. Theoretically, his lease is suspended when he leaves the chair, and then the temporary occupant of that chair has it under lease for the time being, not, however, as subtenant of the first lessee, but as tenant of the respondent. One of the barbers in the shop works on three chairs in the course of a day. When a barber working on a chair advantageously placed for business leaves the shop, another using a chair less advantageously placed may move to the vacant chair; and the chair vacated by the second barber may be taken by a third, and so on.

'Q. Do you mean that any of these people have no right to object to any other barber using their chair when they are gone? A. Absolutely not. They have no objection to that. * * *

'Q. Do we understand these men have the right for these chairs only when they are on the job? Anyone else in the shop can use the chairs when they are gone? A. Yes, that is true. * * *

'Q. And the man who owns that chair has no right to keep them from doing it when he is gone? A. No, and the oral agreement is perfectly clear.'

The case of Mr. Hedrick, one of the barbers, is illustrative. Respondent testified that, when Hedrick sought a place in his shop, '* * * I said, 'I haven't a chair to lease you, but I could lease you the opportunity until my brother comes in the morning on his chair; then you can go to your lunch, and then when you come back, then you can take Mr. Dickson's chair, who is next to my brother, and in the event that I am gone you can take my chair.' And he entered into such an oral lease agreement and was happy so to do, * * *'

Respondent has a single lease agreement with the two bootblacks, who serve customers in the shop and do the usual porter work. Under the agreement, they are to have all of their earnings up to $1,248 a year; all earnings above that sum, not including gratuities, are shared by the...