National Optical Stores Co., Inc. v. Bryant

• Decision Date: 10 June 1944
• Citation: 181 S.W.2d 139,181 Tenn. 266
• Parties: NATIONAL OPTICAL STORES CO., Inc., v. BRYANT, Commissioner, et al.
• Court: Tennessee Supreme Court

181 S.W.2d 139

181 Tenn. 266

NATIONAL OPTICAL STORES CO., Inc., v. BRYANT, Commissioner, et al.

Supreme Court of Tennessee.

June 10, 1944

Appeal from Chancery Court, Davidson County; Thos. A. Shriver Chancellor.

Proceeding under Unemployment Compensation Law by Dr. C. H. Tenent claimant, against National Optical Stores Company, Inc. employer. From a decree affirming an order of the Board of Review of the Unemployment Compensation Division of the Tennessee Department of Labor, S.E. Bryant, Commissioner, and others, holding that claimant was an employee within the Unemployment Compensation Law, the employer appeals.

Affirmed.

A. G Ewing and W. L. Moore, both of Nashville, for defendant-appellee.

CHAMBLISS Justice.

This appeal is from a decree affirming an order of the Board of Review of the Unemployment Compensation Division of the Tennessee Department of Labor holding that Dr. C. H. Tenent was an employee of National Optical Stores Company, within the meaning of the Tennessee Unemployment Compensation Law.

Counsel for appellant concede that this Court is bound by the concurrent finding of the Board of Review and Chancellor, if supported by material evidence, but it is insisted that the facts found do not as a matter of law make out a case of employment under the statute.

Appellant is the Memphis branch of a chain store corporation which conducts the business of making lenses and fitting and selling eye glasses. As an incident of the conduct of this business, and apparently essential to its successful prosecution, the Optical Company provides a professional eye expert for the convenience and use of its customers to examine eyes and write prescriptions for glasses to be in turn supplied and sold by the Optical Company. An office was provided on the store premises, entered thru the store only and without independent sign or marking. The claimant in this case, Dr. Charles H. Tenent, was engaged by the company to perform this work calling for professional skill, and it is the nature of this engagement and association extending over several years which is under consideration in this cause, specifically whether or not it constituted Dr. Tenent an employee of the company within the purview of the statute.

The office occupied by Dr. Tenent, located as above described, with its furnishings, was provided for him free of charge. His hours of work were fixed by the Optical Company and the regular charge of $1 for his examinations, collected by him from customers to whom he gave prescriptions to be filled only by the Optical Company, was also fixed by the company. His compensation was paid in this manner: He collected and retained the $1 fees paid by customers. If in any week these collections aggregated less than $50, the company was obligated to make up to him the difference, thus guaranteeing to him earnings of a minimum of $50 weekly. He neither sought nor accepted outside work, but confined his activities to those who were primarily the customers of the Optical Company, and he was subject to be discharged by the company at will. Indeed, it was as the result of such discharge that his unemployment arose on which he rests this claim.

Despite these facts found by the Board of Review, conceded to be sustained by material evidence, the insistence of appellant is that Dr. Tenent is not an employee within the purview of the Act, but is an independent contractor, as defined in our cases and held at common law. As we understand the argument made for appellant it comes down to this: That because Dr. Tenent was a professional man, employing his professional skill, he was not and could not be subject to the direction and control of the Optical Company in the manner of performance of his work, and he is, therefore, to be classified as an independent contractor and not a servant or an employee. On the brief of counsel this question is thus phrased:

'(a) Can a professional man, such as Dr. Tenent, who was a duly qualified, licensed, registered practicing physician, in the practicing of his profession, in which he exercised his professional judgment, not dictated to or controlled in the exercise thereof nor in the methods or means used by him in exercising same, nor controlled nor attempted to be controlled in the determination of professional conclusions reached by him in the exercise of his professional training and judgment by his employer, be anything but an independent contractor in the practicing of his profession?'

We consider first the controlling provisions of the unemployment statute:

The definition of employment found in the Act, Williams' Code, section 6901.19(g), is as follows:

'(1) Subject to the other provisions of this subsection, 'employment' means service, including service in interstate commerce performed for wages or under any contract of hire, written or oral, express or implied.'

And then the Act continues:

'(6) 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 commissioner that:

'(A) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and

'(B) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

'(C) Such individual is customarily engaged in an independently established trade, occupation, profession or business.'

It cannot be seriously questioned that Dr. Tenent comes within this broad...