BLESSING
Chief Judge.
This
proceeding was instituted by appellee Charles J. Doell
against the appellant, Park Improvement Company, for benefits
under the Unemployment Compensation Law of Indiana. Appellant
resisted the claim and requested a hearing before an Appeal
Tribunal of said Unemployment Compensation Division. There
was a hearing before the Appeal Tribunal which resulted in a
finding and decision for appellee Doell. Thereafter appellant
appealed to the Review Board of the Unemployment Division
which affirmed the decision of the Appeal Tribunal.
The
finding and decision of the Review Board is as follows:
"The employer is engaged in selling cemetery lots that
are owned by another company. In the early part of 1937, this
employer entered into an agreement with a group of
individuals, and that group was given the exclusive right to
sell certain cemetery lots. This agreement, which was in
effect from March 1, 1937, through February 28, 1938
contained the following provision in which the employer was
referred to as "Park", and the group that was the
other party to the agreement was referred to as
"Seller":
"* * * All salesmen shall be obtained, trained, and
directed by the Seller but shall be in the employ of the
Park. The Seller agrees to have each salesman so employed
sign a 'Salesman's Commission Payment Agreement'
and to deliver the same to the Park, a form of which is
attached hereto, and made a part of the terms and conditions
of this agreement. The Seller agrees that the Park should
have full power to discharge any sales employee who proves
unsatisfactory with respect to character, ability, or methods
employed in the faithful performance of work allotted to him
or her. * * *
"The claimant continued to work without change in his
methods after the expiration of the contract by the Park and
the Seller. The claimant furnished his own car and paid his
own expenses and was paid strictly on a commission basis. The
company further reported the claimant's earnings to the
Division and paid contributions on them.
"Points and Authorities:
"Section 2(h) (5) (A) and (B) of the Indiana
Unemployment Compensation Law reads as follows:
"Section 2(h) (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 is customarily engaged in an
independently established trade, occupation, profession or
business; or is an agent receiving remuneration solely upon a
commission basis, and who is master of his own time and
effort.'
"Findings and conclusions:
"The Review Board finds that under the referred to
agreement, the employer reserved the right to direct and
control the services of the claimant and that at the
expiration of the contract, the claimant continued to work in
the same manner as during the period in which the contract
was in force; that the employer treated him as an employee
and so recognized him as such. It is not necessary within the
meaning of Section 2(h) (5) that the employer actually
exercise its right to direct and control the services of the
individual to constitute such individual an employee. It is
sufficient if the employer has the right to direct and
control the services.
"Decision:
"It is held that the claimant was properly reported as
an employee by the protesting employer and that he is
entitled to receive benefits upon the wage credits so
reported."
In the appeal to this court the only error assigned is that
the finding and decision of the Review Board is contrary to
law.
The
Greenlawn Memorial Association was an Indiana corporation
which owned a number of cemetery lots. This association had a
contract with the appellant, the Park Improvement Company,
whereby the latter was to sell said lots. The appellant then
entered into a contract with one W. L. Halberstadt, a sales
promoter, who was to handle the sales of the lots of the
Greenlawn Memorial Association for the Park Improvement
Company. One of the relevant provisions of this contract is
as follows: (The Park Improvement Company is referred to as
the "Park" and W. L. Halberstadt is referred to as
the "Seller".)
"4. All salesmen shall be obtained, trained, and
directed by the Seller but shall be in the employ of the
Park. The Seller agrees to have each salesman so employed
sign a 'Salesman's Commission Payment Agreement'
and to deliver the same to the Park, a form of which is
attached hereto and made a part of the terms and conditions
of this agreement. The Seller agrees that the Park should
have full power to discharge any sales employee who proves
unsatisfactory with respect to character, ability, or methods
employed in the faithful performance of work allotted to him
or her."
The
appellee, Charles Doell, went to work as a salesman when
Halberstadt entered into the above-mentioned contract with
the appellant. Appellee testified that under his contract
with Halberstadt he was to receive a 15% commission on the
sale of any or all lots sold for the Greenlawn Memorial
Association; that he used his own car, paid his own expenses,
and worked whenever he wanted to, but was not compelled to go
out and make a sale. He also testified that the company
supplied him with prints and pictures of the lots, contract
forms and receipt books, and that the company held sales
meetings each morning for the purpose of assisting the
salesmen in their approaches in handling the matter. The
salesmen were requested to attend the meetings every morning,
but Doell missed some of them and nothing was ever said about
it.
The
contract between the appellant and Mr. Halberstadt provided
that the appellant was to make collections and pay the
salesmen's commissions. The appellant had paid the
contributions imposed pursuant to...
