Washington Recorder Pub. Co. v. Ernst

• Decision Date: 24 May 1939
• Docket Number: 27293.
• Parties: WASHINGTON RECORDER PUB. CO. v. ERNST, Director of Department of Social Security, et al.
• Court: Washington Supreme Court

91 P.2d 718

199 Wash. 176

WASHINGTON RECORDER PUB. CO. v. ERNST, Director of Department of Social Security, et al.

No. 27293.

Supreme Court of Washington

May 24, 1939

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

Action by the Washington Recorder Publishing Company against Charles F. Ernst, Director of the Department of Social Security, and others for a declaratory judgment and to the application of the Unemployment Compensation Act to newspaper carriers delivering on routes for plaintiff. From a judgment declaring such carriers independent contractors, not within scope of such act, defendants appeal.

Modified in part and otherwise affirmed.

G.W Hamilton and Lyle L. Iversen, both of Olympia, for appellants.

Neal Brodie & Trullinger, of Olympia, for respondent.

Houghton Cluck & Coughlin, Evans, McLaren & Littell, Allen, Froude & Hilen, Todd, Holman & Sprague, Tanner & Garvin, and Bayley & Croson, all of Seattle, amici curiae.

MILLARD Justice.

The Washington Recorder Publishing Company publishes, in Olympia, a daily newspaper entitled the "Daily Olympian" which the publishing company distributes in Olympia and vicinity by approximately thirty-nine carriers, each of whom operates under a written contract between the carrier and the publishing company, which contract is in the form designated as "The Little Merchant Plan". The contract which is used by the publishing company with its carriers reads as follows:

"The Daily Olympian Carrier's Agreement

"Route No. ________

"I, ________ in consideration of being given the privilege of buying papers from The Daily Olympia and of distributing The Daily Olympian in that section of the city designated on map at The Daily Olympian office as Route No. _______, do hereby agree to the following rules and regulations and to such other rules as The Daily Olympian may from time to time designate, not inconsistent with this agreement:

"1. In consideration of the privilege of buying papers from The Daily Olympian at its wholesale rate, I agree to pay for the same at the rate of ten cents per week per paper for all papers ordered, which number ordered will correspond with the number of subscribers carried on my route list. I further agree to pay to The Daily Olympian eleven cents per week for all subscribers on my route who pay in advance at The Daily Olympian office. All subscriptions paid in advance are to be credited to carrier at the regular current subscription rate.

"2. The foregoing schedule of pay for papers is for all Daily Olympian carriers who have carried papers for The Daily Olympian at least six months. All others will pay an additional one cent per week per paper until they have carried The Daily Olympian for a period of six months of satisfactory service, after which the cost of papers will be reduced to the schedule set out in paragraph No. 1 above.

"3. Statements are rendered Friday of each week, for the week ending the next day, Saturday, and I agree to have same paid in full Before 3 o'clock p.m., Saturday, or not later than 5 p.m., the following Tuesday. This bill not to be subject to any discount or returns. All subscriptions paid in advance at The Daily Olympian office will be credited on bill at regular current rate.

"4. I will deliver the said papers to the subscribers on my route promptly and regularly seven days each week, at the established rate of fifteen cents per week, and will collect each Saturday morning for the week ending that night.

"5. I agree to keep correct list of subscribers at all times on regular cards issued by The Daily Olympian, such list to be the sole property of The Daily Olympian and to be turned over to my successor or accredited representative of The Daily Olympian upon relinquishment of my route. This list will show to where each and every subscriber is paid, and I will make all collections due me from subscribers at the end of each week.

"6. I will, at all times keep a satisfactory substitute, familiar with my route, to act in my place in case of absence.

"7. It is further understood and agreed that this agreement may be cancelled at any time, at the discretion of The Daily Olympian, and that I will go around with my successor without charge a sufficient number of times to enable him to become familiar with the route and that Before leaving the route, I will pay to The Daily Olympian all money I have collected from subscribers.

"8. When contract is terminated at any other date than the first day of the week, I will make collections and pay to the Daily Olympian for papers for the preceding week only. The new carrier will pay a reasonable salary to carrier named in this contract for delivery of papers from first day of that week up to the date of termination of contract. On the termination of this contract The Daily Olympian may, at its option, on notice to the carrier, collect for the carrier the accounts that the carrier may have outstanding against subscribers on said route, and in that event shall account to the carrier for all collections that it shall make of such outstanding accounts.

"9. I will not take the agency for, nor sell or deliver, any other newspaper while selling The Daily Olympian.

"10. I will deliver free of charge all advertising checking copies required on my route and to any news stands now existing or which may hereafter be established on my route. I will also deliver free of charge complimentaries and a reasonable number of sample copies of The Daily Olympian.

"11. It is clearly understood that I am not an employe of The Daily Olympian. I am to buy from The Daily Olympian and will re-sell to the subscribers on my route, the difference between the wholesale and retail price being my compensation for delivery and collection.

"12. I agree to deposit into a thrift account with the Circulation Manager of The Daily Olympian as trustee, one cent (1 each week during the life of this agreement for each paid subscriber to whom a paper was delivered by said Carrier.

"The Circulation Manager of The Daily Olympian is hereby designated as Trustee, and is hereby authorized to deposit such money as received by him in a local savings and loan association, such deposit to be entered in the name of the Carrier executing this agreement. The deposit books of the savings and loan association will be kept by the said Trustee in his possession.

"It is understood that the deposit shall be made each week until said Carrier has a total sum of $25.00 on such deposit and that such amount shall not be withdrawn during the life of this agreement. Deposits in excess of $25.00 may be withdrawn in case of emergency and with the consent of the Trustee.

"The Daily Olympian, in consideration of the making of the deposit by said Carrier, guarantees 2 per cent interest per year to be computed semi-annually, on the money deposited in addition to all interest paid by the local savings and loan association on such deposit, up to the sum of $50.00.

"It is understood and agreed that whenever said Carrier discontinues the sale of The Daily Olympian, the savings and loan account book will be delivered to him for his own use as soon as all financial obligations to The Daily Olympian are satisfied and it is herein agreed by the carrier and his guardian, that, if the carrier fails to fulfill his financial obligations to The Daily Olympian within 30 days after the discontinuance of his carrier contract, the Circulation Manager is hereby authorized to withdraw from the Carrier's account in the Savings and Loan sufficient amount of money to cover said obligations.

"13. This Contract Is Not Assignable or Transferable.

"Executed in duplicate this ______ day of ______ 19__.

"For The Daily Olympian: __________

"_________

Carrier

__________

"Circulation Manager

"Parent or Guardian

"__________

"Address"

The publishing company also publishes a special advertising paper, called the "Advertiser", once each week which is distributed to all homes in Olympia. The carriers of the publishing company are offered the right to distribute that paper within their respective routes, but are not required to do so; and if they refuse to make the distribution, the distribution is made by others. The distribution of the Advertiser is independent of the distribution of the Daily Olympian and is entirely independent of the work performed by the carriers under their contract. If the boys deliver the Advertiser they are paid from fifty cents to one dollar a week for such service. No charge is made to the recipients of the Advertiser. No control is exercised by the publishing company over the manner of delivery of the Advertiser other than to designate the area within which each boy is to make deliveries and the time by which deliveries are to be started.

Under the contract between the publishing company and its carriers for distribution of the Daily Olympian, the carriers purchase the papers from the publishing company at an agreed rate per week per paper and pay therefor weekly. The carriers sell the papers to their customers in the route or territory designated and at the price stipulated in the contract. The money received from the sale of the papers by the carriers belongs to the carriers who are not required to report to the publishing company the receipts from such sales. If the carriers fail to make collection the loss falls upon the carriers and not upon the publishing company. No control is exercised by the publishing company over the time and manner of the distribution of the Daily Olympian by the carriers except that the distribution must be made in accordance with the contract and no control is exercised over the time and method of collections. While there are numerous details of...