Schomp v. Fuller Brush Co.

• Decision Date: 02 May 1940
• Docket Number: No. 202.,202.
• Citation: 124 N.J.L. 487,12 A.2d 702
• Parties: SCHOMP et al. v. FULLER BRUSH CO.
• Court: New Jersey Supreme Court

12 A.2d 702

124 N.J.L. 487

SCHOMP et al.

v. FULLER BRUSH CO.

No. 202.

Supreme Court of New Jersey.

May 2, 1940.

Proceeding in the matter of Robert John Schomp and Board of Review (State of New Jersey Unemployment Compensation Commission), against the Fuller Brush Company, wherein a writ of certiorari was allowed upon application of the Fuller Brush Company to review determination of the Unemployment Compensation Commission that the claimant Schomp was an employee of the Fuller Brush Company and that as such he was entitled to unemployment compensation fixed by statute.

Determination of commission affirmed and writ dismissed.

Argued January term, 1940, before BROGAN, C. J., and DONGES and PORTER, JJ.

Charles A. Malloy, of Trenton (Herman D. Ringle, of Trenton, of counsel), for respondents.

John A. Laird, of Newark, for prosecutor.

BROGAN, Chief Justice.

The issue here is whether "employment" as defined by the Unemployment Compensation Law, R.S. 43:21-19, sub. (i) (6), N. J.S.A. 43:21-19(i) (6), resulted or existed under the facts and circumstances here inafter set out. Schomp, the claimant, had been engaged in selling the merchandise of the Fuller Brush Company, prosecutor of this writ. The merchandise was supplied by the company to Schomp for cash or on a guaranteed credit plan. The Unemployment Compensation Commission of this state concluded that the claimant, Schomp, was an employee of the Fuller Brush Company and that as such he was entitled to unemployment compensation fixed by that statute A writ of certiorari was allowed to review this determination and the return brings before us certain depositions concerning the incidents of the relationship between these parties as well as their contract, dated June 28, 1938. In the contract Schomp is designated as a "dealer." The agreement provides that the dealer is granted "the right to purchase the company's merchandise and resell the same" in a particular territory to be fixed; that the company agrees to sell to the dealer, at wholesale prices, at its distributing station, such merchandise as the dealer may desire; that the dealer may not obligate the company, and that the company has no interest "in the dealer's accounts with his customers." No retail selling price is fixed in the contract though it appears in the depositions that the dealer's profit on "regular items" amounts to 33 1/3%. There is a provision for the return of any unsold merchandise within thirty days after the termination of the agreement and also that the agreement may be terminated by either upon written notice.

Employment is defined by the statute, supra (Sec. 19(i) par. 1), as follows: "'Employment' means service, including service in interstate commerce performed for remuneration or under any contract of hire, written or oral, expressed or implied." Sub-division 6 of this same paragraph must at the same time be considered in conjunction with the legislative definition of the term. It reads :

"Services performed by an individual for remuneration shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the commission 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 customarily engaged in an independently established trade, occupation, profession or business."

Depositions were taken to expose the circumstance and conditions surrounding the service rendered by Schomp as "dealer." It will be noticed that the three (A, B and C) conditions that would negative the relationship of the statutory "employment" must be concomitant, must all co-exist together and the failure of one necessarily results in the relationship being one of "employment."

The Board of Review held that the test set up by prerequisite "C" had not been met and concluded that the claimant was an employee.

The prosecutor's argument in the main is that the contract setting out the mutual rights and privileges established beyond peradventure that the plaintiff was an independent contractor; that he was free from control of the company; that the relationship of employer and employee did not exist; that services were not "performed for remuneration;" and that the parties were...