State ex rel. Employment Sec. Commission v. Coe
| Decision Date | 16 December 1953 |
| Docket Number | No. 530,530 |
| Citation | 239 N.C. 84,79 S.E.2d 177 |
| Parties | STATE ex rel. EMPLOYMENT SECURITY COMMISSION v. COE et al. |
| Court | North Carolina Supreme Court |
H. Haywood Robbins and Harry C. Hewson, Charlotte, for appellants.
W. D. Holoman, R. B. Overton, D. G. Ball, Raleigh, for appellee Employment Security Commission.
The sole question for determination on this appeal is whether or not the shoeshine boy performing services for the Victory Barber Shop, as outlined in the findings of fact, was employed by the barber shop within the meaning of the Employment Security Law.
The evidence clearly establishes the fact that the agreement between the manager of the barber shop and the shoeshine boy required the shoeshine boy to perform certain services for the barber shop, and he was at all times subject to discharge by the manager of the barber shop. In return for these services the barber shop furnished him a shoeshine stand and paid the privilege tax required therefor by the City of Charlotte and the State of North Carolina. The shoeshine boy furnished the polish, shine rags, and brushes necessary to shine shoes, and received as compensation for his services whatever he got for shoeshines and tips. He had no fixed hours, but the manager of the barber shop in testifying about when the shine boy rendered his services to the shop, said, 'at various hours ranging from 8:00 A.M. to 6:00 P.M.'
Are the findings of fact by the Commission supported by competent evidence? We think so. Consequently, such findings are conclusive on appeal. G.S. § 96-4(m); Unemployment Compensation Comm. v. J. M. Willis Barber & Beauty Shop, 219 N.C. 709, 15 S.E.2d 4; Graham v. Wall, 220 N.C. 84, 16 S.E.2d 691; Employment Security Comm. v. Roberts, 230 N.C. 262, 52 S.E.2d 890; Employment Seturity Comm. v. Kermon, 232 N.C. 342, 60 S.E.2d 580; Employment Security Comm. v. Monsees, 234 N.C. 69, 65 S.E.2d 887.
It is our task to determine whether the findings of fact support the Commission's conclusions of law.
"Employment' means service performed prior to January 1, 1949, which was employment as defined in this chapter prior to such date, and any service performed after December 31, 1948, * * * performed for wage or under any contract of hire, written or oral, express or implied, in which the relationship of the individual performing such service and the employing unit for which such service is rendered is, as to such service, the legal relationship of employer and employee. Provided, however, the term 'employee' includes an officer of a corporation, but such term does not include (1) any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an independent contractor or (2) any individual (except an officer of a corporation) who is not an employee under such common-law rules.' G.S. § 96-8(g).
However, since the services under consideration involve a period of two years prior to January 1, 1949, it becomes necessary to ascertain what the law provided with respect to 'employment' prior thereto. Moreover, where employment within the meaning of the Employment Security Law is once established and the employer becomes covered thereunder, he remains so until coverage is terminated as provided by G.S. § 96-11.
Prior to January 1, 1949, the law defined 'employment' as '* * * service, * * * performed for remuneration or under any contract of hire, written or oral, express or implied.' G.S. § 96-8 (g) (1).
G.S. § 96-8(g) (6) of the Employment Security Law, prior to 1949, further defined 'employment' as follows:
'(6) 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.'
The appellants contend that the Commission made no finding to the effect that the shine boy received any remuneration for the services rendered to the barber shop. However, in finding of fact No. 4, the Commission found 'that during the calendar years 1947, 1948, and 1949, the barber shop employed regularly seven barbers during each week, and in addition thereto engaged the services of a shoeshine boy.'
The word 'engage' is defined in Black's Law Dictionary, Third Edition, page 661, as follows: 'To employ or involve one's self; to take part in; to embark on.' While Webster's New International Dictionary, Second Edition, defines the word 'engaged' as: 'Occupied; employed.'
The Employment Security Law of North Carolina, in subsection (n) of G.S. § 96-8 contains the following provisions:
'From and after March 10, 1941,
When we consider the words 'employment,' 'wages,' 'services,' and 'remuneration,' as they have been defined in our Employment Security Law, during the period involved herein, we are of the opinion that the judgment of the court below, which affirmed the order of the Commission, should be upheld. Unemployment Compensation Comm. v. Jefferson Standard Life Ins. Co., 215 N.C. 479, 2 S.E.2d 584; Employment Security Comm. v. Champion Distributing Co., 230...
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