Mozingo v. Mississippi Employment Sec. Commission, 39664

Decision Date16 May 1955
Docket NumberNo. 39664,39664
Citation224 Miss. 375,80 So.2d 75
PartiesJ. R. MOZINGO and Mrs. J. R. Mozingo, d/b/a Bob Mozingo, v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION.
CourtMississippi Supreme Court

Wells, Thomas & Wells, Joe Jack Hurst, Jackson, for appellant.

Harry M. Bryan, Jackson, for appellees.

HOLMES, Justice.

This is an appeal from a judgment of the Circuit Court of the First Judicial District of Hinds County affirming an order of the Mississippi Employment Security Commission levying an assessment of contributions against the appellant under the Mississippi Employment Security Law.

The assessment was based upon the compensation claimed by the Commission to have been earned by three individuals, namely, F. L. Conerly, J. C. Mozingo and C. R. Scanlon, during the year 1951.

Pertinent provisions of the applicable statute are found in Section 7440(h)(1), (i)(1), (i)(5), and (n), Code of 1942, reading as follows:

'(h) (1) 'Employer' means: Any employing unit which * * * has or had in employment, 8 or more individuals * * *.

'(i) (1) 'Employment' means any service performed * * * for wages, or under any contract of hire, written or oral, express or implied. * * *

'(i) (5) Services performed by an individual for wages shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the commission that such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant. * * *

'(n) 'Wages' means all remuneration for personal services, including commissions and bonuses * * *.'

The appellant admittedly had in his employment seven other individuals whose status as employees is not questioned, and if the three above named individuals are held to be employees, then the appellant became subject to the statute as one having eight or more individuals in his employment.

The sole question presented, therefore, is whether the said three individuals were employees of the appellant within the purview of the statute. The solution of this question necessitates a review of the facts. The order of the Commission incorporated as a part thereof the stenographic transcript of the proceedings before the Commission and provided that the same should constitute a part of the record in the event of an appeal. The evidence before the Commission is, therefore, before us for consideration without objection upon the ground that the review of the Commission's order is obtained by certiorari proceeding. We state the facts as disclosed by the record.

The appellant held a distributorship from the Tom Huston Peanut Company of Columbus, Georgia, under which he engaged in the business of selling at wholesale confectionary merchandise, consisting of Tom Huston products which he purchased from the Tom Huston Peanut Company, and candies, Wrigley gum, potato chips, corn cheez and pork skins, which he purchased from different sources. He was located at Jackson, Mississippi, where he maintained a warehouse in which he housed the merchandise which he purchased, and he operated in a prescribed territory assigned to him by the Tom Huston Peanut Company. He had so conducted said distributorship since May 20, 1946. In the operation of his said business, the appellant owned his own trucks and equipment and hired his own salesmen and helpers, and was in complete control of the operations of his business free from any direction or control thereover by the Tom Huston Peanut Company. His salesmen drove the trucks and were paid on a commission basis, and were recognized by the appellant as employees. In 1951, three of these salesmen, namely, the said F. L. Conerly, J. C. Mozingo, and C. R. Scanlon, approached the appellant with a view of formulating some contractual arrangement whereby they might become independent operators, that is to say, whereby each might conduct an independent distributorship in an assigned portion of the appellant's prescribed territory. It was proposed that each would purchase the truck which he was then driving and would purchase from the appellant the needed merchandise to stock the truck. The appellant agreed to the arrangement and sold to each the truck which he was then driving, selling the same on time and without a down payment under a retained title contract. The agreement between the parties was reduced to writing and it is this agreement upon which the appellee relies as the basis of the appellant's claimed liability for the contributions assessed.

In this agreement the appellant was designated as distributor and the other party was designated as salesman, and we shall so refer to the parties in relating the terms of the agreement. The agreement provided that all merchandise sold off of the salesman's truck should come from Bob Mozingo's warehouse; that the salesman would carry liability insurance on his truck and would carry fire, theft and collision insurance on the truck if there should be any indebtedness thereon to the distributor, or if no indebtedness thereon the salesman might cancel the fire, theft and collision insurance; that the salesman would pay one-half the cost of all display equipment placed on his route and that a sufficient supply of display and the right type would be put out as soon as available, and as soon as they had the merchandise to stock the same; that if at any time the territory worked by the salesman appeared too much to work properly, an agreement would be worked out between the salesman and the distributor to reduce the territory so that all territory might be properly worked; that all merchandise bought from the distributor should net the distributor seven percent on the sales to the salesman; that all sales that distributor could get credit for would be credited to the salesman at his cost price; that the selling price of all merchandise to the retail merchant would be agreed to by the distributor and salesman and that in no instance should prices be increased or decreased unless agreed to by both parties; that in the territory worked by the salesman he would call on all accounts regularly each week, or more often if needed, and that all equipment should be kept clean as possible under prevailing conditions and that all merchandise should be checked to see that it was fresh, and if not fresh, the same was to be picked up and given credit for, especially on merchandise that the salesman was allowed credit for in the warehouse; that the territory worked by the salesman was a part of the Bob Mozingo distributorship and would remain so as long as the salesman worked the same, and that the salesman would, at all times, keep an up to date route list of all calls made by him; that in the event it became necessary for the salesman to give up his territory he should first give to the distributor the right to purchase his truck on a fair depreciated value and that the distributor would purchase back from the salesman all display equipment, depreciating it on a fair basis, and that the salesman would give to the distributor a proper route list of all customers called on by him at the time he gave up the territory; that the salesman would conduct himself at all times in a manner to reflect credit to himself, the distributor, and the Tom Huston Peanut Company.

The proof further showed, however, that while the aforesaid agreement was the agreement under which the parties worked, they departed therefrom in their actual operations, and we now relate some of the material facts disclosed by the proof relative to the actual operations of the parties.

One of the individuals in question maintained his own warehouse in Vicksburg. The others had no warehouse. All of them got their merchandise...

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