Rozran v. Durkin
| Decision Date | 17 November 1942 |
| Docket Number | No. 26415.,26415. |
| Citation | 45 N.E.2d 180,381 Ill. 97 |
| Parties | ROZRAN v. DURKIN, Director of Labor, et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Cook County; Harry M. Fisher, Judge.
Proceeding under the Unemployment Compensation Act by Sherman H. Kuehl for unemployment compensation, opposed by Philip Rozran, doing business as Cannonball Bonded Messenger Service, employer. To review a decision affiring the ruling of the Board of Review which reversed the finding of the Department of Labor disallowing the claim, the employer brings certiorari.
Judgment affirmed.David A. Witt and Samuel Arthur Karlin, both of Chicago, for plaintiff in error.
George F. Barrett, Atty. Gen. (Albert E. Hallett, Jr., of Chicago, of counsel), for defendants in error.
Sherman H. Kuehl filed his claim for unemployment compensation with the Department of Labor under the provisions of the Illinois Unemployment Compensation Act, alleging that he was in the employ of the Cannonball Bonded Messenger Service for the period from January 9, 1939, to June 1, 1939, and had earned $378.78 in net wages earned during this period.
The facts show that the Cannonball Bonded Messenger Service was a partnership organization in the general pickup and delivery service. Kuehl made deliveries for Cannonball under an oral agreement by which terms he was to receive 65 per cent of the gross revenue received for the delivery of the packages. He was not required to report to the company at any particular day or at any particular time of the day, but the evidence shows that he reported every morning early in the morning, with the exception of a few mornings when he was snowbound. He was given packages to deliver, which packages were delivered to various points in the city of Chicago and suburbs. At times he would telephone in to the office and receive directions to pick up packages at different places for delivery. He oftentimes collected C. O. D.'s on the packages. He provided his own truck and paid all of the expenses necessary to operate his truck and in making the deliveries.
It is admitted he was not obligated to make deliveries in any particular manner, but the dispatcher for Cannonball would give him whatever packages he saw fit and from day to day his territory, or portion of the city in which deliveries were to be made, would differ. Where possible, he was given packages which would take him in the same direction at the same time. There was no closing hour, the evidence showing that oftentimes he delivered late into the night. The only requirement was that the deliveries be made with dispatch.
The evidence indicated that Kuehl was at liberty to do trucking for other persons, but never did. His entire time was taken up in deliveries and pickups for Cannonball. He was responsible for any losses of packages. Cannonball, for its protection, however, carried Workmen's Compensation insurance and also insurance against theft. According to Kuehl's figures, it cost him from $7 to $11 per week to maintain his truck. Cannonball had others doing the same work as Kuehl and had some men whom they considered their own employees. The latter were required to report at regular hours and received fixed wages and used company equipment.
The deputy of the Department of Labor disallowed the claim on the ground that the claimant was not an employee of the company and because he had insufficient wage credits to allow him compensation. This finding was reversed by the referee of the Board of Review, and, upon certiorari, the circuit court of Cook county quashed the writ and affirmed the ruling of the Board of Review. The writ of error to this court followed.
It is the contention of the plaintiff in error:
1. That Kuehl was not an employee of Cannonball Bonded Messenger Service within the meaning of the Illinois Unemployment Compensation Act.
2. That Kuehl did not earn net wages, after deduction of expenses, in excess of $225 during the base period so as to entitle him to compensation.
The theory of the Department of Labor is:
1. That the claimant was an employee of the plaintiff in error within the meaning of the act, since the provisions of the statute supersede the common-law conception of master and servant and are more broad and inclusive than the generally accepted common-law interpretation.
2. That under the provisions of the act, the wages paid during the base period were sufficient to entitle him to unemployment compensation since the act does not in any of its definitions refer to net wages.
The Unemployment Compensation Act (Ill.Rev.Stat.1939, chap. 48, par. 218,) at the time of this proceeding provided as follows:
‘Subject to the other provisions of this subsection, ‘employment’ means services, including service in interstate commerce, performed by an individual for an employing unit, and including all services performed by an officer of a business corporation, without regard to whether such services are executive, managerial or manual in nature, and without regard to whether such officer is or is not a stockholder or a member of the board of directors of the corporation.'
‘Services performed by an individual shall be deemed to be employment subject to this Act unless and until it is shown to the satisfaction of the Director 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 engaged in an independently established trade, occupation, profession or business.’
The plaintiff in error to sustain his contention that the term ‘employee’ is to be construed within the ordinary meaning of ‘employee’ under the rules of master and servant and under the Workmen's Compensation Act, has cited several Illinois cases. The two most recent cases cited, Ferguson & Lange Foundry Co. v. Industrial Comm., 346 Ill. 632, 179 N.E. 86, and Meyer v. Industrial Comm., 347 Ill. 172, 179 N.E. 456, both admit that the question as to whether one is engaged in service for another as an employee or independent contractor is not always easy of determination. Both cases recognize that the right to control the manner of work is an important consideration and that an unfailing test in determining the master-and-servant relationship is whether the control of the servant includes the power to discharge him. It is likewise said that if one represents the will of the person for whom the work is done only with respect to the result and not the means by which that result is accomplished, then the person doing the work is an independent contractor.
There is no doubt but that these cases represent the common and accepted theory of independent contractor and master and servant. The question here is whether the statute, in accordance with its natural and most obvious import, is to be construed as meaning an employee according to the common law master-and-servant relationship, or whether a...
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AFM Messenger Serv. v. Dept. of Employment Security
...be considered an employee under the Act. See Jack Bradley, 146 Ill.2d at 74, 165 Ill.Dec. 727, 585 N.E.2d 123; Rozran v. Durkin, 381 Ill. 97, 101-04, 45 N.E.2d 180 (1942). Under the Act, "employment" is defined in relevant part as "any service * * * performed by an individual for an employi......
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Carpetland v. Dept. of Employment Security
...sufficient, standing alone, to establish that services are provided at the employing unit's place of business. In Rozran v. Durkin, 381 Ill. 97, 104-05, 45 N.E.2d 180 (1942), the delivery driver made more than "brief appearances" at the delivery service. He reported there "each and every da......
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Zelney v. Murphy
...disclose means of control and direction by appellant. We think this case, on the facts, is similar to the case of Rozran v. Durkin, 381 Ill. 97, 45 N.E.2d 180, 144 A.L.R. 735. There, one Kuehl was in the employ of the Cannonball Bonded Messenger Service. He made deliveries for Cannonball un......
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AFM Messenger Serv., Inc. v. Department of Employment Security, No. 1-98-4794
...Ill.Dec. 166, 390 N.E.2d 333. AFM urges this court to find Zelney v. Murphy, 387 Ill. 492, 56 N.E.2d 754 (1944), and Rozran v. Durkin, 381 Ill. 97, 45 N.E.2d 180 (1942), two cases relied upon by the circuit court, as distinguishable from the case at bar and asserts that United Delivery Serv......