Singer Sewing Mach. Co. v. Industrial Commission of Utah

• Decision Date: 19 February 1943
• Docket Number: 6354
• Citation: 134 P.2d 479,104 Utah 175
• Court: Utah Supreme Court
• Parties: SINGER SEWING MACH. CO. v. INDUSTRIAL COMMISSION OF UTAH, DEPARTMENT OF PLACEMENT AND UNEMPLOYMENT INSURANCE et al

134 P.2d 479

104 Utah 175

SINGER SEWING MACH. CO. v. INDUSTRIAL COMMISSION OF UTAH, DEPARTMENT OF PLACEMENT AND UNEMPLOYMENT INSURANCE et al

No. 6354

Supreme Court of Utah

February 19, 1943

Original proceeding by the Singer Sewing Machine Company to review an order of the Industrial Commission, Department of Placement and Unemployment Insurance, awarding Gorman C Winget benefits under the Unemployment Compensation Law.

Order affirmed.

Fabian Clendenin, Moffat & Mabey, of Salt Lake City, for plaintiff.

A. M Ferro and F. F. Dremann, both of Salt Lake City, for defendants.

LARSON, Justice. WOLFE, C. J., and McDONOUGH, J., concur. MOFFAT, Justice, concurring in the result. PRATT, J., on leave of absence.

OPINION

LARSON, Justice.

This is an original proceeding to review a decision of the Commission holding that defendant, Winget, a salesman operating on a strictly commission basis under a particular type of contract, No. 72, was in the employment of the plaintiff company, within the contemplation of the Utah Unemployment Compensation Law. Laws 1936, Sp. Sess., c. 1, as amended by Laws 1937, c. 43. There is no factual dispute in this case, and we have before us only a question of law. Briefly, defendant, Winget, entered into a written contract with plaintiff to perform a series of acts, sales and collections in connection with the selling of plaintiff's merchandise, at specified rates of commission. Hereinafter, the plaintiff will be referred to as the Company, the defendants as the Commission, and the salesman, respectively. In form, the contract was an agency agreement. It authorized the salesman to hold himself out to the public as duly authorized to effect the sale of the Company's sewing machines and vacuum cleaners and to make collections on accounts entrusted to him. The salesman is not obligated either to make sales or to accept accounts for collection, but his contract was terminable at the will of either party. The Company fixes the net cash price of its new merchandise which must be paid to the Company; sales may be made on title retaining contract basis on forms approved and furnished by the Company, the title being retained by the Company, the sales contract being forwarded to it. The salesman was required to keep the Company advised of addresses of purchasers, and to do anything the Company deemed advisable for the protection of its interest and rights under any credit sale made by him, or account entrusted to him. If the salesman made collections on these contracts he received a commission on such collections, in addition to his sales commission. If he did not choose to make the installment collections, such were handled from the Company office. New machines sent out to the salesman were consigned and he was required to report weekly the goods he had on hand. The salesman could take in old machines or other matters on the purchase price of new machines at figures to be fixed by himself, but in all cases he had to account to the Company by cash or title contract representing cash for the net cash sale price fixed by it. The "trade-in" machines were applied on the commissions of the salesman, and became his property. The salesman himself determined the amount of time he devoted to the business of the Company and where he maintained his place of business. He could handle other lines of merchandise for other firms, and could sell his "trade-in" machines in competition with the Company's new line. Be it understood, these facts apply only to salesmen operating under contract No. 72. Many of the Company's salesmen operated under a different contract not here involved.

There is presented a single law question: Is the salesman operating under such contract (Contract 72) operating "in employment" within the meaning of the Utah Unemployment Compensation Law? The solution of this question should present no difficulty since in all seven cases which have come before this court involving this law, we have defined what constitutes employment under the law, and the tests for determining the question. Each member of the court has expressed his views, and there is no conflict except one of words between them. But since much of the argument in this case centers around the meaning or interpretation of those opinions, we deem it advisable to examine them all, and clarify any doubts as to what the court has held: First, as to the basis of approach and interpretation of the Act; Second, as to tests of employment under the Act. We explore these propositions in order by an examination of the cases. In Globe, Grain & Milling Co. v. Industrial Comm., 98 Utah 36, 91 P.2d 512, the first case to come before us, it was admitted applicant was in the employ of the Company and received wages as that term is defined in the Act. The principal question was as to whether he was then to be denied compensation as one sifted out by Sec. 19 J(5) of the Act. We there stated without any elaboration, that the term "employee" under the Act was broader than that term under the common law; that the relationship covered by the Act was one broader and beyond that of the mere master and servant relationship. Our next case was Creameries of America v. Industrial Comm., 98 Utah 571, 102 P.2d 300, 302. We there referred to the Globe case as one in which we held the Act did not restrict the benefits to those coming strictly within the common-law concepts of servants and employees, and then stated that the Creameries case presented just two questions: (1) Did applicant perform "services for wages" within Sec. 19 J(1) of the Act? (2) If so, was he excluded from benefits by Sec. 19 J(5)?

All the court agreed that applicant was an employee within the Act because he performed "services for wages" as defined by the Act. We also agreed that having been brought within the Act 19 J(1) he was entitled to benefits, because he was not sifted out through the exception set forth in Sec. 19 J(5). In the course of the opinion we said:

"it seems clear to us that the legislature has endeavored to define by the Act itself a classification of individuals entitled to unemployment benefits."

And again:

"We adhere to our previous decision * * * that whether * * * Foss is entitled to unemployment benefits must be determined from the tests laid down in the [Act], rather than from any common law concepts of master and servant," and then indicate that the terms "services" and "wages" are both broader than their common-law counterparts. The case of Salt Lake Tribune Pub. Co. v. Industrial Comm., 99 Utah 259, 102 P.2d 307, was confined to a determination as to whether there was evidence to support the Commission's findings. All members of the court held the evidence sufficient. Logan Cache Knitting Mills v. Industrial Comm., 99 Utah 1, 102 P.2d 495, decided merely the question of the sufficiency of the Commission's findings to sustain an award. In National Tunnel & Mines v. Industrial Comm., 99 Utah 39, 102 P.2d 508, as far as the opinion of the court is concerned, propositions not pertinent to any matters here involved only were dealt with. Combined Metals Reduc. Co. v. Industrial Comm., 101 Utah 230, 116 P.2d 929, was a memorandum decision based on the National Tunnel case and contained no discussion of the question here posed.

The only remaining case from this jurisdiction is Fuller Brush Co. v. Industrial Comm., 99 Utah 97, 104 P.2d 201, 129 A. L. R. 511. The first question now under consideration was not involved or discussed in the court's opinion in the Fuller Brush case but the second question was.

That opinion, however, was carefully confined to the interpretation of a specific section of the statute, Sec. 19 J(5), and to consideration of the facts involved as shown by the record in that case. We shall refer to that opinion more fully later. At this point, it suffices to say that the opinion in the Fuller case cited with approval every preceding opinion of this court involving interpretations of the Unemployment Compensation Laws, as the basis and foundation from and upon which we proceeded in the Fuller case. As far as the first question immediately under consideration is concerned, the opinions of the court heretofore rendered have not directly spoken. But the members of the court in individual opinions in the cases have expressed themselves. Chief Justice Moffat, in the National Tunnel case, supra [99 Utah 39, 102 P.2d 508, 512], said:

"The rights established by the act are purely statutory and the procedure is statutory."

Also,

"The contributions are an excise for the specific purpose of protecting the state and the people who constitute the state by alleviating suffering due to economic insecurity incident to unemployment, and a means of protecting the health, morals and welfare of the people of the state."

Said Mr. Justice Wolfe, on petition for rehearing in the Globe case, 98 Utah 48, 97 P.2d 582, supra:

"Since the act applies to a new field of law which has its own glossary and defines the relationships to which it applies, the introduction of old concepts which fitted into the conceptual pattern of tort liability carried over into this field may only be confusing."

And in his dissenting and concurring opinion in the National Tunnel case, supra, he says:

"We are dealing with the administration of a public act designed to benefit a class and society as a whole by cushioning the effect of unemployment. * * * The whole scheme of unemployment compensation, including the raising of a fund, may be considered as an integrated whole, all of which falls under police power since only the employee class benefits * * *. In that sense the plan is a unit, an integrated whole, a self-contained scheme, under the police power."

Mr Justice McDonough,...