Ogozalek v. Administrator, Unemployment Compensation Act

• Decision Date: 26 April 1960
• Docket Number: No. 11311,11311
• Citation: 163 A.2d 114,22 Conn.Supp. 100
• Court: Connecticut Superior Court
• Parties: Andrew S. OGOZALEK v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT.

Page 114

163 A.2d 114

22 Conn.Supp. 100

Andrew S. OGOZALEK v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT.

No. 11311.

Superior Court of Connecticut, Windham County.

April 26, 1960.

Walter J. Ogozalek, Willimantic, for plaintiff.

Albert L. Coles, Atty. Gen., and Harry Silverstone, Asst. Atty. Gen., for Administrator, Unemployment Compensation Act.

MacDONALD, Judge.

This is an appeal under the provisions of § 31-270 of the General Statutes from the action of the defendant, as administrator of unemployment compensation, in assessing contributions totaling $394.84, including interest, as due from the plaintiff for the four quarters of 1956, the second, third and fourth quarters of 1957 and the four quarters of 1958. Neither amount nor method of computation is in dispute, and the sole question for determination is whether the persons upon whose earnings the assessments were predicated were employees of the plaintiff or of independent contractors.

The plaintiff, at all times relevant to this appeal, was and is, in the business of selling ice cream at retail to the general public through the medium of refrigerated vending trucks operating out of the plaintiff's principal headquarters and place of business, located in Willimantic. The plaintiff owned five such trucks, with his trade name 'A. & W. Ice Cream,' painted conspicuously on each truck and with a price list fixed by him, ranging on various items and quantities from five cents to $1.29, posted on each truck. The plaintiff repaired, serviced and maintained these trucks, obtained and paid for the insurance which covered them and paid for the gasoline and oil which ran them. All this the plaintiff was obligated to do under the terms of his agreements with the vendor-operators of the trucks, who are the controversial figures of this dispute. These agreements, one of which, in a form identical for our purposes with all, is in evidence as exhibit A, also required the plaintiff to pay all other truck expenses and the expenses of obtaining local licenses and to sell his products to the operators at 20 per cent below the regular retail prices of same. The agreement was terminable by either party immediately upon giving notice to the other party and took great care to spell out the relationship of independent contractor rather than that of servant or agent, containing the following express language: 'The essence of this agreement is that said contractor [operator] is and shall be an independent contractor. The said Ogozalek [plaintiff] shall have no control over the routes taken by the contractor, the hours of work of the said contractor, and the methods used by said contractor. It is clearly understood that the said contractor is not the servant or agent of the said Ogozalek.' As a matter of fact, such infinite care is shown in defining the relationship that one is inclined to wonder whether or not the language of the agreement, in the words of Shakespeare, '* * * doth protest too much, methinks.' Hamlet, act III, scene 2.

In actual practice, the plaintiff obtained applicants by advertising for 'Driver-Salesman; Ice Cream Products'; required each one engaged to sign an agreement in the form of exhibit A; furnished each with a pair of white pants to wear while vending; paid for the laundering of same; and started each operator off on each working day with a full stock of ice cream products (and sometimes other of the plaintiff's products) and $25 in change. Although the agreement provided that each contractor 'pay to the said Ogozalek for said merchandise when the said Ogozalek delivers same to such contractor,' the common practice, especially in the case of the younger boys, was for the operator or 'contractor' simply to sign a slip, taking out the merchandise 'on credit,' with the amount of his indebtedness thus incurred deducted from the profits of each week's operations--20 per cent of all the money brought in by each operator. In other words, for practical purposes, an operator had no expense whatsoever and received a 20 per cent commission on sales at the end of each working week.

The plaintiff did not assign each operator a certain route but did assign him to a specific territory and would tell him when he could 'take over' another route when it was vacated. He did not supervise the location of sales efforts within an operator's territory but did 'suggest' certain locations, such as a ball park, at certain times--'suggestions' which were generally followed. He did not specify certain working hours, but when...