State v. Stevens

• Decision Date: 02 January 1951
• Docket Number: No. 1183,1183
• Citation: 116 Vt. 394,77 A.2d 844
• Parties: STATE v. STEVENS.
• Court: Vermont Supreme Court

Page 844

77 A.2d 844

116 Vt. 394

STATE v. STEVENS.

No. 1183.

Supreme Court of Vermont.

Jan. 2, 1951.

Clifton G. Parker, Atty. Gen., Raymond S. Fitzpatrick, Barre, for plaintiff.

Gibson & Crispe, Brattleboro, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

SHERBURNE, Chief Justice.

This is an action of contract to recover of the defendant contributions alleged to be due under the Vermont Unemployment Compensation Law for the periods from July 1, 1946, through December 31, 1946, and from January 1, 1947, through September 30, 1947, together with interest and penalties. At the close of all the evidence the county court granted defendant's motion for a directed verdict and judgment thereon. The cause comes here upon the State's exceptions.

All the evidence as to the alleged employment came from one William C. Cole, a witness called by the State. From his undisputed testimony the following facts appeared: Cole had been operating a sawmill of his own when he went to work for one Davis and the defendant at a weekly wage in a sawmill they owned in Wardsboro. Later the defendant bought out Davis, and in 1946 entered into an oral arrangement with Cole, under which the defendant would furnish the mill and power to operate it, and would keep the motor and equipment in repair, and pay Cole $9 per thousand for sawing the lumber, and Cole was to hire and pay his own help and pay the Social Security taxes on them. There was no agreement as to the length of time, and nothing to hold Cole to stay there, nor to prevent the defendant from telling him to get out. Cole owned a truck which he used to cart the mill waste out of the way across the road and for which the defendant furnished the gasoline. The defendant attended to putting the logs on the skidway and to the trucking of the sawed lumber. He told Cole the sizes into which the lumber was to be sawed and how to grade it. If the defendant took an order for lumber that had to be delivered in a certain length of time, he would ask Cole to rush it through a little faster. Other than the truck Cole supplied only some cant hooks and an axe. Cole had six employees who worked under his orders. At some time in 1947 the arrangement was changed and the defendant paid Cole $54 a day on a five day week basis, an Cole hired and paid his help as before.

According to the defendant's report to the Unemployment Compensation Commission under date of March 7, 1947, he was engaged in the business of manufacturing lumber at Wardsboro with an average number of 10 workers and had started such business in September, 1946, and employed eight or more workers during 16 weeks in that year and during 9 weeks in 1947. At the trial the defendant conceded that he was an employer within the meaning of the Unemployment Compensation Law, except as to Cole and those he hired. The sole issue to be decided is whether Cole and the men whom he hired to work with him in the mill during the periods in question were in the 'employment' of the defendant within the meaning of such law.

Our Unemployment Compensation Law was enacted by No. 1 of the Acts of the Special Session of 1936. With later amendments this was carried forward into Chapter 250 of the Vermont Statutes, Revision of 1947. Although such Vermont Statutes did not become effective until February 1, 1948, for convenience we quote below from § 5347 thereof certain provisions which are in the language of the acts in force in 1946 and 1947 except for the substitution of the word 'chapter' for 'act.'

'5343. Definitions. The following words and phrases, as used in this chapter, shall have the following meanings unless the context clearly requires otherwise:

* * *

* * *

'VI. (a). 'Employment,' subject to the other provisions of this subdivision VI, means service within the jurisdiction of this state, including service * * * performed for wages or under any contract of hire, written or oral, expressed or implied. * * *

'(b). Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the commission that:

'(1). 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

'(2). 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

'(3). Such individual is customarily engaged in an independently established trade, occupation, profession or business.'

The original act did not contain provision (3). It was added by § 2 of No. 171 of the Acts of 1937.

In support of the rulings below in the granting of defendant's motion for a directed verdict and in excluding evidence offered by the State, the defendant asserts that the evidence shows that Cole was an independent contractor as a matter of law, and that there was no 'employment' as it is defined in Vermont Statutes, Revision of 1947, Chapter 250, and that the tests provided in § 5343, VI(b) were not intended to be considered in the conjunctive.

As held in Schomp v. Fuller Brush Co., 124 N.J.L. 487, 12 A.2d 702, affirmed 126 N.J.L. 368, 19 A.2d 780, in construing an identical statute, the three conditions (1), (2) and (3) 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.' In the statute the term 'employment' is more or less affirmatively defined, and taken in connection with the delimitations 1, 2 and 3, it is wholly defined. It is reasonably clear that the Legislature in its affirmative definition of employment, ordained that all services performed by an individual for remuneration should be deemed to be employment for the purpose of unemployment compensation, unless the three concomitant conditions appear. In that case tests 1 and 3 were not met.

When the meaning of a statute is plain, it is the duty of the courts to enforce it according to its obvious terms. In such a case there is no necessity for construction. Blanchard v. Blanchard's Estate, 109 Vt. 454, 459, 199 A. 233; Stearns v. Graham, 85 Vt. 486, 82 A. 835; State v. Franklin County Savings Bank, 74 Vt. 246, 263, 52 A. 1069; In re Will of Prudenzano, 116 Vt. 55, 60, 68 A.2d 704. Unlike some of the unemployment statutes that may have been adopted in other states our statute contains no mention of the terms 'master,' 'servant' or 'independent contractor.' It is plain from its terms that the three concomitant conditions bring under the definition of 'employment' many relationships outside of the common law concepts of the relationship of master and servant. Although it may be debatable whether Cole was an independent contractor under the holdings in Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 113 A. 818; Morgan v. Gould, 96 Vt. 275, 280, 119 A. 517; Travelers Insurance Co. v. Evans, 101 Vt. 250, 260, 143 A. 290; Jourdenais v. Hayden, 104 Vt. 215, 158 A. 664, cases cited by the defendant, our determination here is governed by the terms of the statute. Nor is the statute in pari materia with our Employers Liability and Workmen's Compensation Statutes as argued by the defendant. The terminology is somewhat different, and the two were adopted for different purposes. Even under the latter, Varmont Statutes, Revision of 1947, § 8054(I), includes under the definition of 'employer' a person who is the owner or lessee of premises or who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workmen there employed....