News Pub. Co. v. Verweire

• Decision Date: 11 June 1943
• Docket Number: 17089.
• Parties: NEWS PUB. CO. v. VERWEIRE et al.
• Court: Indiana Appellate Court

49 N.E.2d 161

113 Ind.App. 451

NEWS PUB. CO. v. VERWEIRE et al.

No. 17089.

Appellate Court of Indiana, in Banc.

June 11, 1943

Howard L. Townsend, of Fort Wayne, for appellant.

James A. Emmert, Atty. Gen., Frank Hamilton, First Ass't Deputy, and Charles W. Grubb, Deputy Atty. Gen., for appellee.

ROYSE Chief Justice.

This is an appeal from a decision of the Review Board of the State Unemployment Compensation Division confirming an award of a Referee which held that appellee was an employee of appellant and entitled to the benefits of the Employment Security Act. Sec 52-1501 to 52-1524, Burns 1933 (Supp.).

The question here to be determined is whether or not appellee Verweire was an employee of appellant within the meaning of § 52-1502(h) (5) (A) & (B), which provides as follows:

"(5) Services performed by an individual for remuneration shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the board that:

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

"(B) Such individual, in the performance of such services, is engaged in an independently established trade occupation, profession or business; or is an agent who receives remuneration solely upon a commission basis and who is the master of his own time and effort".

The existence of the employment relationship is an ultimate fact to be determined by the Review Board. An ultimate fact need not be proved by a particular type of evidence, and an award of the Review Board must be sustained by this court if from the evidence such ultimate fact may be reasonably inferred. Review Board, etc., v. Mammoth Life & Accident Ins. Co. Ind.App., 1942, 42 N.E.2d 379; Bimel Spoke & Wheel Co. v. Loper, 1917, 65 Ind.App. 479, 117 N.E. 527; Coppes Bros. & Zook v. Pontius, 1921, 76 Ind.App. 298, 131 N.E. 845, 846, in which case the court said: "Whether a person is an employe or an independent contractor is an ultimate fact to be determined from the evidence. It may be called a conclusion of fact, since it is a conclusion to be drawn from the contract itself, the attitude of the parties toward each other, the nature of the work, and all relevant circumstances. The intention of the parties is, of course, to be considered".

With these rules in mind we proceed to a consideration of the evidence to determine if the finding of the Review Board is sustained by the evidence.

It is disclosed by the record that appellee Verweire was an accomplished musician. His usual work was teaching bands and private pupils. He and his family maintained a studio in Fort Wayne. This studio was not a corporation or partnership, but a family affair. In 1925 he was engaged by the President of appellant to instruct boys in the News-Sentinel Band. The members of this band were not all carriers of the News-Sentinel, the evidence disclosing that at no time were more than fifty per cent of the members of the band carriers of the paper. Appellee Verweire was to be with the band when it had an engagement to play and also to rehearse with them on Tuesday evening of each week. The band would, on occasions, make trips out of the city. Ordinarily, the party requesting the band paid the expenses of the trip, but on some occasions they were paid by appellant. Appellant furnished the uniforms for the band members and Verweire, also some of the music.

During the time Verweire directed this band he also directed several other bands in Fort Wayne, and taught music in the Fort Wayne public schools. He received from appellant $25 per week. A weekly fee of 25 cents was to be paid to Verweire by each member of the band on rehearsal night. He gave this fee to his daughter who played the piano as an accompanist for the band. The fee was not always paid by all of the members of the band. On rehearsal night a representative of appellant's Circulation Department was usually present to keep the boys in order. The band was maintained by appellant for advertising purposes and to promote its good will. Verweire fixed the time of the rehearsals. He, with appellant's Circulation Manager, mutually determined when and where public appearances of the band would be made. Appellant had the final right to say whether or not the band would play at a certain place, but it did not have the right to say whether or not Verweire had to be there. When, because of other engagements, he could not be present at either a rehearsal or public appearance, he would designate a substitute who would take his place. On such occasions he usually designated his son or grandson to direct the band. He presented his bill for services monthly, which was paid on the 10th of the month, as were other expense items of appellant. A number of the statements he submitted to appellant were introduced in evidence. We set out one of these as it appears in the record: "Statement

"Fort Wayne, Ind. July 1st 1938

"News-Sentinel

"In Account with John L. Verweire

"Verweire Music Studios and Band School

"Studios

"Phone A-4198

"Residence, 1227 Kinsmoor Ave., Phone H-16613

Instructing N. S. Band (June) ................. $100.00

Music purchased for City and (News-Sentinel) ..... 1.50

Van Wert engagements (Military Escort) ........... 1.50

-------

$103.00

Adv. Band MB / 158"

Appellant paid its employees weekly and they were not required to submit statements. Verweire's name never appeared on its payroll. Appellant never told him to play any specific piece of music nor gave any orders as to how he should direct the band. On May 2, 1941 he received the following letter from appellant:

"The News Sentinel

"Fort Wayne, Indiana

"May 2, 1941

"Mr. John L. Verweire,

"131 E. Berry Street,

"Fort Wayne, Indiana.

"Dear Mr. Verweire,

"The musical knowledge imparted to members of the News-Sentinel

...