Salt Lake Tribune Pub. Co. v. Industrial Commission

• Decision Date: 04 May 1940
• Docket Number: 6114
• Citation: 99 Utah 259,102 P.2d 307
• Court: Utah Supreme Court
• Parties: SALT LAKE TRIBUNE PUB. CO. v. INDUSTRIAL COMMISSION et al

102 P.2d 307

99 Utah 259

SALT LAKE TRIBUNE PUB. CO. v. INDUSTRIAL COMMISSION et al

No. 6114

Supreme Court of Utah

May 4, 1940

Original proceeding in the Supreme Court by the Salt Lake Tribune Publishing Company to review the Industrial Commission's decision that Lynn Clark Cushing was entitled to receive unemployment benefits under the Unemployment Compensation Act.

Decision affirmed.

Ingebretsen Ray, Rawlins & Christensen, of Salt Lake City, for plaintiff.

Joseph Chez, Atty. Gen., S.D. Huffaker, Asst. Atty. Gen., and A. N Ferro and F. F. Dremann, both of Salt Lake City, for defendants.

McDONOUGH Justice. WOLFE, J., MOFFAT, Chief Justice, PRATT, Justice, concurring. LARSON, Justice, concurring in the result.

OPINION

McDONOUGH, Justice.

This case arises under our Unemployment Compensation Law, Chapter 1, Laws of Utah 1936, Special Session, as amended by Chapter 43, Laws of Utah 1937. The Industrial Commission determined, through its appeal examiner, that applicant Lynn Clark Cushing was entitled to receive unemployment benefits, having performed services for wages for plaintiff and being under the direction and control of said company in the performance of such services. The plaintiff company instituted this action to review the decision of the Commission, urging that there is no evidence to support its findings and decision.

This court has recently had occasion to consider our Unemployment Compensation Act. Globe Grain & Milling Co. v. Industrial Commission, 98 Utah 36, 91 P.2d 512, rehearing denied, 98 Utah 48, 97 P.2d 582; Creameries of America v. Industrial Commission, 98 Utah 571, 102 P.2d 300. Therein we made an analysis of the Act and construed the provisions thereof pertinent to certain questions of law here presented. It will, therefore, be unnecessary in this case to discuss the points resolved in the prior decisions.

The first question to be determined in this case is whether, under the facts, the applicant Cushing was performing personal services for wages for the plaintiff herein.

Lynn Clark Cushing entered into a contract with plaintiff publishing company whereby the former was to be a "circulator" or "carrier" of plaintiff's publications within a certain district. The company was to furnish all newspapers, required by the circulator, at certain fixed prices, the papers to "be and become the property of said circulator." In turn the circulator was to sell and distribute "as he may see fit" to purchasers or subscribers, the business to be "solely under the control and direction of said Circulator." He was, however, required to sell the newspapers at a certain fixed price. The contract further provided as follows:

"It is agreed and understood that the Publisher has no right of control, supervision or direction over said Circulator, or the means or method by which he may sell or distribute said newspapers and or publications or cause the same to be sold or distributed, but the Circulator does recognize that the Publisher has an ultimate interest in the sale and distribution of its newspapers and publications and the regular and prompt delivery thereof in a manner acceptable to the purchasers thereof and subscribers therefor, which inures to the Publisher's benefit, and the Circulator agrees to deliver said newspapers and publications regularly and promptly and in an acceptable manner to those purchasing them or subscribing therefor by agreement made by or in behalf of said Circulator as aforesaid."

Settlement with the company for all newspapers and publications delivered to the circulator was to be made every month. The contract was to run from month to month unless terminated by either party "with or without cause, upon 15 days' notice in writing." Upon termination of the contract the circulator was required to turn over to the company "all paid-in-advance subscriptions, together with the names and addresses of all subscribers and the expiration of their subscriptions, with a full statement of the Circulator's claims against the Publisher, that a prompt settlement may be had as between the Publisher and Circulator."

Under the terms of such a contract it is clear that Cushing was to perform "personal services" for the publishing company. Creameries of America v. Industrial Commission, supra. The company was interested in seeing that its newspapers reached its subscribers and in order to accomplish that result it entered into a contract, whereby a carrier or circulator was to perform the service of delivering newspapers and other publications "to those purchasing them or subscribing therefor by agreement made by or in behalf of said Circulator."

And the amount to be received for such services constitutes "wages" as that term is defined by the Unemployment Compensation Act. The circulator was required to pay the company a certain price for the publications received and was required to charge the subscriber a certain price for them. The difference between the two figures was the remuneration "payable for personal services" which the Unemployment Compensation Act defines as wages.

It is contended by the plaintiff, however, that even though it be determined that Cushing was performing services for wages for petitioner, still the conditions set out under subsections (a), (b), and (c) of Section 19 (j) (5) of the Act were concurrently present to preclude his right to receive unemployment benefits.

Subsection (a) provides in effect that the individual who performs "services for wages" is within the protection of the Act unless it is shown to the satisfaction of the Commission that he is free from control or direction over the performance of the services, both under the contract of service and in fact. The Commission, through its appeal tribunal, found that Cushing was not free from the control or direction of the publishing company, which finding the company urges is not supported by the evidence.

An examination of the record reveals that the finding of the Commission is supported by substantial evidence. A review of it follows:

Frank Baldwin, circulation manager for the publishing company, testified that the company employed district managers to instruct the carriers with respect to delivering the newspapers to the customers, making collections, and obtaining new subscribers. The district manager "goes over their routes, spots and finds out where a boy might fail to pick up his papers or deliver them--various responsibility of supervision, the same as I might do." (Italics added.) "He is responsible for the boys, to give them assistance that they might require." Where complaints came into the company from subscribers they were referred to the district manager who took them up with the carrier.

Mr. Baldwin further testified that the carriers were required to keep a list of subscribers and an account for each one. Order blanks were furnished to the carriers by the company for the purpose of ordering additional papers from the company for new customers or decreasing the order where some customer was discontinued. Where a new subscription was sent in by the carrier, the company mailed the subscriber a subscription card.

On re-examination by counsel for plaintiff Mr. Baldwin testified, in response to the following question:

"Mr. Christensen: You said in response to the question that the district supervisors act in a supervisory capacity over the boys. Do they supervise the boys as to the method of doing the business or just as to the result? A. Result entirely."

In explanation of this he testified:

"* * * for instance, if a boy is late getting started, we say 'here, these people around here want their paper to read in the morning. You should get out there and make this delivery early or you are going to lose business, going to lose...