Unemployment Compensation Commission of Wyoming v. Mathews, 2183

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: RINER, Chief Justice.
• Citation: 56 Wyo. 479,111 P.2d 111
• Decision Date: 11 March 1941
• Docket Number: 2183
• Parties: UNEMPLOYMENT COMPENSATION COMMISSION OF WYOMING v. MATHEWS

111 P.2d 111

56 Wyo. 479

UNEMPLOYMENT COMPENSATION COMMISSION OF WYOMING
v.
MATHEWS

No. 2183

Supreme Court of Wyoming

March 11, 1941

APPEAL from the District Court, Sheridan County; C. D. MURANE, Judge.

Action by the Unemployment Compensation Commission of Wyoming against J. P. Mathews, doing business under the firm name and style of the Palace Cafe and Bar Service, to collect certain contributions alleged to be due the commission on account of the services of certain bands or orchestras which rendered services as musicians. From the judgment, the plaintiff appeals.

Affirmed.

For the plaintiff and appellant, the cause was submitted on the brief of Ewing T. Kerr, Attorney General of Cheyenne, Wyoming, and James G. McClintock of Casper.

The sole question presented is whether the musicians, including the leader, who performed services for the defendant, were in "employment" under the terms of the Wyoming Unemployment Compensation Law. Remedial laws of this character should be liberally construed. McConnell v. Murphy Bros., 45 Wyo. 289; Pero v. Collier-Latimer, Inc., 49 Wyo. 131; Koprowski v. Megeath Coal Co., 48 Wyo. 334; Baldwin v. Scullion, 50 Wyo. 508. The Act was passed in 1937 and amended in 1939. Wyoming employers receive a credit of ninety per cent. on the Federal Tax, on the basis of the taxes they have paid to the state. The services performed by musicians in the "Gardens" of the defendant are within the legislative definition of the term "employment" in the Unemployment Compensation Law. Industrial Commission v. Life Insurance Co. (Colo.) 88 P.2d 560; Young v. Bureau of Unemployment Compensation, Georgia Court of Appeals, No. 28257, decided July 5, 1940; Payne and Son Lumber Co. v. McKinley, decided July 8, 1940, see C. C. H. Ark. Par. 8019; Milling Co. v. Industrial Commission (Utah) 91 P.2d 512. Where a statute provides a glossary, the definitions therein contained must be followed in the construction of the statute. In re Monrovia Evening Post (Calif.) 248 P. 1017; Dewitt v. State ex rel. Crabbe (Ohio) 141 N.E. 551; O'Boyle v. Parker-Young Co. (Vt.) 112 A. 385; Fisk v. Bonner Tie Co. (Idaho) 232 P. 569; Railway Co. v. Kaufman (Ind.) 133 N.E. 399; Industrial Commission v. Investment Co. (Colo.) 242 P. 49; Fox v. Standard Oil Co., 294 U.S. 87; Steinberg v. U.S. 14 F.2d 564; Southern Photo & Blue Print Co. v. Gore (Tenn.) 114 S.W.2d 796; Singer Sewing Machine Co. v. Commission (Ore.) 103 P.2d 708; Industrial Commission v. Insurance Company (Colo.) 88 P.2d 560; In re Mid-American Co., 31 F.Supp. 601; Milling Company v. Industrial Commission (Utah) 91 P.2d 512; Commission v. Jefferson Standard Life Insurance Co. (N. C.) 2 S.E.2d 584. A person may be an agent as to one part of an undertaking and an independent contractor as to other parts. Khoury v. Illuminating Co. (Mass.) 164 N.E. 77; Aldrich v. Tyler Grocery Company, 89 So. 289. The relationship of master and servant is not always capable of definition. Restatement of the Law of Agency, Sec. 220, Chapter VII, Title B, Vol. 1. Cates v. Williamson (Mo.) 117 S.W.2d 655; McDowell v. Duer (Ind.) 133 N.E. 639; O'Boyle v. Parker-Young Co. (Vt.) 112 A. 385; Commission v. Jefferson Standard Life Ins. Co. (N. C.) 2 S.E.2d 584; Industrial Commission v. Northwestern Life Ins. Co. (Colo.) 88 P.2d 560; Globe Grain & Milling Company v. Industrial Commission (Utah) 91 P.2d 512. The single decision which is out of line with the contention here made is that of Washington Recorder Company v. Ernst (Wash.) 91 P.2d 718 and is out of line with the case of McDermott v. State (Wash.) 82 P.2d 568. The reasoning of the Washington case was repudiated in Creameries of America v. Commission (Utah) 102 P.2d 300; Machine Co. v. Commission (Ore.) 103 P.2d 708; Hyde v. United States, 225 U.S. 347. In order to be deemed not in employment, three conditions must be fulfilled. Company v. Industrial Commission, 102 P.2d 307; Fuller Brush Company v. Commission (N. J. L.) 12 A.2d 702. If the commission might reasonably have concluded that any one of the three conditions was not satisfied, the judgment of the lower court must be reversed. Mutual Life Ins. Co. v. Industrial Commission (Colo.) 88 P.2d 560; Young v. Bureau of Unemployment Compensation, C. C. H. Ga. para. 8074; State v. District Court, 45 Wyo. 29. Otherwise the cases of San Diego Co. v. City, 174 U.S. 739; San Diego Co. v. Jasper, 189 U.S. 439 and Van Dyke v. Geary, 244 U.S. 39 would apply. An appellate court will not disturb a judgment rendered on conflicting evidence. Oil Company of Indiana v. Sullivan, 33 Wyo. 223 and cases cited; Ideal Bakery v. Schryver, 43 Wyo. 108; Midwest Refining Co. v. George, 44 Wyo. 25; Standard Oil Co. v. Ervin, 44 Wyo. 88; Fowler v. Continental Oil Co., 43 Wyo. 410. A similar question was decided by the Supreme Court of Colorado in Industrial Commission v. Northwestern Mutual Life Ins. Co. (Colo.) 88 P.2d 560. The Act provides a statutory test differing from the common law rule establishing the relation of master and servant. The first condition in the statutory test requires freedom of control or direction over performance of such services, under the contract and in fact. The second test relates to services outside the usual course of business of the employer. The third test is whether the individual is engaged in an independently established trade, occupation or business. In the present case, the services performed by the musicians was a part of the employer's business in conducting a cafe and bar. The musicians were obligated under contract to serve the employer when called upon and for such period as the employer directed. Boyle v. Mahoney & Tierney, 92 Conn. 404, 103 A. 127; Center Restaurants v. Miller, 18 N.Y.S. 302; Comer v. State Tax Commission (N. M.) 29 P.2d 936; Stockwell v. Morris, 46 Wyo. 1; In re Caldwell, 164 F. 515; The Sea Lark, 14 F.2d 201; Claus v. DeVere (Nebr.) 235 N.W. 450. Considering the objectives of the Unemployment Compensation Law, it is clear that the workers of the type here involved were intended to be protected. Carmichael v. Southern Coal & Coke Co., 301 U.S. 495.

For the respondent, the cause was submitted on the brief of G. A. Layman of Sheridan.

The notice of appeal does not comply with Section 89-4902, R. S. It states that plaintiff will appeal, which does not indicate a present act. Simpson v. Ogg (Nev.) 1 P. 827; Michelson v. City of Sacramento (Calif.) 159 P. 431; Eddy v. Hunter (Calif.) 189 P. 291. The appeal should be dismissed. If this court deems the notice sufficient, we submit the following points and authorities in support of the judgment below. It is well settled that a judgment rendered on conflicting evidence will not be disturbed on appeal, if there be evidence to support it. Standard Oil Co. v. Sullivan (Wyo.) 237 P. 253; Bakery v. Schryver, 43 Wyo. 108, Midwest Refining Co. v. George, 44 Wyo. 25; Standard Oil Company v. Ervin, 44 Wyo. 88; Fowler v. Continental Oil Co., 43 Wyo. 410, 4 P.2d 1092. The judgment below is predicated upon the principle that the music was supplied by an independent contractor. We append a copy of Internal Revenue Bulletin, No. 38, dated September 18, 1939, in which the precise question here involved was decided by the Federal Social Security Board, in favor of our contention that the musicians in question are not entitled to benefits under the Workmen's Unemployment Compensation Law. The decision is pertinent, for the reason that said law is designed to be coordinated with the Social Security Act. The point also seems to have been decided in the case of Fox Park Timber Company v. Baker (Wyo.) 84 P.2d 736. The test of control means complete control of the person or persons employed. Western Indemnity Company v. Pillsbury (Calif.) 159 P. 721; Royal Indemnity Company v. Industrial Accident Commission (Calif.) 285 P. 912; Moody v. Commission (Calif.) 269 P. 542. The right of the contractor to select his assistants and discharge them, also to furnish his own supplies and equipment are elements indicating an independent contractor. The evidence in the present case has established the existence of the above factors and the trial court so found. The defendant therefore submits that under the evidence adduced in the trial of this cause neither of the leaders, nor the musicians were agents or employees of the defendant, but rather that the leaders of the various bands who performed services in the business establishment of the defendant were employers of the musicians and therefore solely liable for any contributions under the law.

RINER, Chief Justice. BLUME, J., concurring. RINER, Ch. J., concurs in the opinion of Judge Riner. KIMBALL, J., dissenting.

OPINION [111 P.2d 112]

[56 Wyo. 484] RINER, Chief Justice.

The Unemployment Compensation Commission of Wyoming was defeated in its attempt to collect from [56 Wyo. 485] J. P. Mathews, doing business under the firm name and style of The Palace Cafe and Bar Service, certain contributions alleged by said Commission to be due on account of the services of certain bands or orchestras which rendered services as musicians under the circumstances hereinafter detailed. The parties will be herein designated occasionally and for the sake of brevity: the Unemployment Compensation Commission of Wyoming as the "Commission" and J. P. Mathews as the "owner".

The action which the Commission instituted for the purpose above indicated was brought in the district court of Sheridan County by the Commission against the owner under the provisions of Chapter 113 of the 1937 Session Laws of Wyoming as amended by Chapter 124 of the Session Laws of Wyoming, 1939, and was tried to the court without a jury, with the result above mentioned. The record in the cause was brought here by direct appeal, the Commission claiming prejudicial error in the trial court's general finding and judgment thereon in said action against it. The record discloses that there was...