CURTIS
Judge.
This
action was instituted before the Appeal Tribunal of the
Unemployment Compensation Division by Choice McKinney, one of
the appellants, against the appellee for benefits under the
unemployment compensation law. The case was transferred to
the Review Board of the Unemployment Compensation Division on
its own motion. The said Review Board held that McKinney was
an employe of the appellee within the meaning of the
unemployment compensation law and was entitled to benefits.
The appellee, pursuant to a statute in existence at that
time, appealed to the Marion Superior Court, Room 3, for a
judicial review of the Review Board's decision. The said
complaint in that court alleged as error generally that: (1)
The Review Board erred in finding as a matter of law that
McKinney was an employee; (2) that the Review Board erred in
not finding as a matter of law that McKinney was an
independent contractor; and (3) the Review Board erred in
deciding as a matter of law that an insurance agent and debit
collector is subject to the unemployment compensation law. To
this complaint the Review Board filed its answer in general
denial, and also certified and filed in said court a
transcript of all of the evidence and proceedings had before
it as required by law.
Upon a
trial of the cause, the trial court reversed the decision of
the Review Board and held that there was no evidence to
support the Review Board's decision. We now quote the
finding and judgment of the trial court, as follows:
"Come now the parties, by their respective attorneys
and the defendants having filed their general denial in the
plaintiff's complaint, and the defendants, Everett L.
Gardner, Fred R. Bechdolt, and George Brubaker, as members of
the Review Board of the Unemployment Compensation Division of
the Department of Treasury, State of Indiana, having
certified and filed with this court all documents and papers
and transcript of all the testimony taken in the matter of
the application of Choice McKinney to the State Unemployment
Compensation Board for unemployment benefits under the
Indiana Unemployment Compensation Act, together with the
findings of fact and decision of said Review Board, this
cause is now submitted to the court for trial and
determination upon the certified documents, papers and
transcript of testimony taken in the matter before said
Review Board, together with said Review Board's finding
of facts and decision thereon, and the court having examined
the same and the briefs of counsel and the court being duly
advised in the premises, now finds for the plaintiff and
finds that as a matter of law there was no evidence to
support the decision of the said Review Board.
"It is therefore ordered, adjudged and decreed by the
court that the decision of the Review Board of the
Unemployment Compensation Division of the Department of
Treasury of the State of Indiana is erroneous as a matter of
law and the Review Board of the Unemployment Compensation
Division of the Department of Treasury of the State of
Indiana by and through its members, Everett L. Gardner, Fred
R. Bechdolt and George L. Brubaker are hereby ordered to
enter an order in accordance with this decree.
"It is further ordered and decreed that the plaintiff
recover of the defendant, Choice McKinney, the costs of this
cause."
A
motion for new trial was duly filed by the appellants and
overruled with an exception. The causes or grounds of the
motion are that the decision of the court is contrary to law
and not sustained by sufficient evidence. From the judgment
above indicated, this appeal has been prosecuted, the sole
error assigned being alleged error in the ruling on the
motion for new trial. We now quote the statement of fact made
by the said Review Board as follows:
"The employer is engaged in the Life and Accident
Insurance business and the applicant performed services for
such company from 1929 to May 30, 1939, as a salesman and
debit collector. During the period from 1929 to May 16, 1939,
the applicant did not operate under a written agreement.
However, on May 16, 1939, a written agreement, introduced in
evidence as employer's exhibit 'B', was presented
to the applicant by his district manager for his signature.
The agreement was not in duplicate and was signed only by the
applicant. The written agreement was retained by the district
manager and filed with the employer company. The agreement
provided in the last clause that:
"'The effective date of this agreement as
hereinbefore referred to shall be the second day of January,
1939.' The employer further introduced in evidence as
employer's
exhibit 'D' a letter of the Deputy Commissioner of
the United States Internal Revenue Department in which it was
held that services performed under a contract similar to
employer's exhibit 'B' were not services in
employment under the Social Security Act.
"The applicant testified that there had been no
particular change in the manner in which he performed
services at any time during the ten year period in which he
was performing services for his employer. He further
testified that at the time he was required to sign the
agreement designated as employer's exhibit 'B' he
protested to the district manager and was assured by the
district manager that nothing in it would hurt him.
"Services performed by the applicant were principally
those of debit collector for which he was paid on a
commission basis. If a policy lapsed he was required to
obtain a new policy or sustain a loss on his debit. The
applicant was given a fixed territory in which to operate and
was furnished forms on which to make his report and was
required to report at regular intervals. His debit book
remained the property of the company and the sales
commissions were interlocked with collections. The applicant
could quit at any time he saw fit without either of the
parties incurring any legal responsibilities to the other.
When the applicant's services were terminated he had no
further right to commissions and the business on his books
became the absolute business of the company."
The
working agreement between the appellant, McKinney, and the
appellee was in writing and required the said appellant,
McKinney, to work in a territory fixed by the appellee. As a
further basis for its decision, the said Review Board made
certain findings from which we quote as follows:
"Item No. 2 of the contract provides: 'The agent
agrees that in carrying on his business, as contemplated in
this agreement, he will be governed by the ethics of the Life
Insurance profession and the laws and regulations of the
Insurance Department of this State, and will so conduct
himself as to not affect adversely the
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