Yergey v. Montgomery Ward & Co.
| Decision Date | 16 December 1947 |
| Docket Number | 47144. |
| Citation | 30 N.W.2d 153,239 Iowa 258 |
| Court | Iowa Supreme Court |
| Parties | YERGEY v. MONTGOMERY WARD & CO. |
Rehearing Denied Feb. 13, 1948.
Edward L. McCarthy, of Sioux City, for appellant.
Stilwill Brackney, Stilwill & Wilson, of Sioux City, for appellee.
The issue here is simple. Defendant relies solely upon the contention that claimant's husband was an independent contractor and not an employee. The Deputy Industrial Commissioner as sole arbitrator denied the claim. The Industrial Commissioner on petition for review reversed the arbitration decision and allowed the claim. On appeal the district court in turn reversed the Commissioner's ruling. This was in effect a holding that there was not sufficient competent evidence in the record to support the Commissioner's decision. Sections 86.29 and 86.30(4), Iowa Code 1946. The claimant appeals.
There is no factual contradiction between witnesses. Claimant's husband entered into some relationship with defendant on or about June 23, 1945, and was killed September 28, 1945, while engaged in performing the duties incident to whatever the arrangement was between them. No one was present when the contract was made except decedent and R. F. Hanner defendant's retail store manager in Sioux City.
Defendant had embarked on a spray painting program in that territory. It had entered into an oral agreement with the Midwest Spray Painting & Decorating Co. of Omaha, Nebraska, to do the work of spraying. Defendant was to furnish and be paid for the paint and the Midwest Company was to be paid for the labor. Defendant undertook to furnish representatives to generate orders for the other company and make estimates of both paint and labor but received no compensation for that except the profit on sale of paint. Its representatives also estimated in advance the amount of paint that would be required and entered the orders therefor in sales books furnished by defendant.
Defendant advertised this program in the newspapers and the manager of the Farmers Elevator at Vermillion, South Dakota, seeing the ad, filled out and sent in to defendant the coupon asking that a representative be sent to make arrangements for painting. After some delay and telephoning the decedent, representing the defendant, appeared and said he had been sent to take measurements of the building. He went alone up in the elevator hoist or lift. In a few minutes it was discovered he had fallen from the building. He died almost instantly. There may be some significance in the fact that later another representative of defendant went to Vermillion to complete the unfinished job of estimating and salesmanship.
I. Our only concern is to determine whether there is sufficient competent evidence in the record to support a finding that Yergey was an employee. Our function is not to determine the weight of the evidence. American Bridge Co. v. Funk, 187 Iowa 397, 401, 173 N.W. 119. The case was not triable de novo on appeal from the commissioner's award. Brown v. Rath Packing Co., 219 Iowa 9, 257 N.W. 411.
The undisputed facts we have already detailed make it certain that some relationship between decedent and defendant was established the latter part of June, 1945. The store manager, Hanner, was defendant's only witness. On direct examination he testified: That it was arranged between him and Yergey that the later 'would contact people or develop leads or would be given leads through me as store manager, and at that time could contact these people at his own volition at such times as he deemed advisable, and in event that he was successful in consummating a deal or transaction he would give us a list of the materials that he had sold to this customer'; that he was furnished a sales book and was to bring orders into the store and be given a ten per cent. 'refund allowance.'
The witness explained this last term was not accurate, that it was in fact a 'representative discount' but they used a 'refund allowance' form as a matter of bookkeeping. He said he used that plan because decedent wasn't on their payroll; that decedent did not want to sign a federal withholding tax receipt or have a social security number.
The witness testified further that decedent said he had been a piano salesman all his life, had an established business, didn't know when pianos might become available and didn't want to tie himself down.
The witness also testified that 'leads' or possible prospects were turned over to decedent but he was not accountable to defendant if he sold them or not, that he was assigned no particular territory and that a substantial part of the business he turned in was from prospects initiated by himself. The only restriction to territory was that if he sold labor as part of the transaction it would have to be in Midwest Company territory. He could sell paint to customers who did not have it 'spray-painted on.' He had no instructions from defendant, no transportation, no expense account and no particular hours of work--could work as much or as little as he wished. He was free to carry on any other business activity.
Mr. Hanner also testified on direct examination:
But on cross-examination it developed that when Mr. Yergey first went to work he was entered on defendant's books as an employee for withholding tax, that on June 27th and 29th he made sales totalling $1443.35 upon which his commission was $144.30, that a social security tax of $1.44 was deducted and he was paid the balance, $142.86; also that he had a social security card as an employee of defendant on a Montgomery Ward form. These facts were revealed by several exhibits with which the witness was confronted, viz., 'Salesclerk's Weekly Record of Commissions Earned and Cancelled,' 'Withholding Receipt,' 'Social Security Card' and 'Withholding Slip.'
The witness then explained that although decedent was at first placed on the payroll as an employee he later objected to the tax deduction and his designation or classification was changed from 'outside salesman' to 'representative.' He insisted that as a 'representative' decedent was subject to no direct supervision or direction and that the change in classification was in order to avoid the withholding tax. He admitted there was no other change in relationship. There is no testimony of any actual change in conduct between the parties. However, though there may have been no direct supervision either before or after the alleged change in relationship decedent, when given leads, was expected to work on them.
The witness pointed out an additional distinction between 'outside salesman' and 'representatives':
However, it seems by that standard defendant had but one 'outside salesman' and yet the sales book to be issued by the company to salesmen and representatives, apparently indiscriminately, contained 'Instructions to Sales Clerks.' The one issued to Mr. Yergey showed he made thirty-four sales from the time he commenced work to the time of his death, showing a gross of $9258.74 over the total period of approximately fourteen weeks. There is no evidence he ever worked regular hours or reported daily to his superiors, even before the alleged change in relationship.
Mr. Maberry who was named by Hanner as the one 'outside salesman,' testified it was his job to take care of contacts that came into the store. ...
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Taylor v. Horning
... ... Reynolds v. George & Hoyt, 230 Iowa 1267, 1271, 300 N.W ... 530, 532; Yergey v. Montgomery Ward & Co., Iowa, 30 ... N.W.2d 153, 155 ... There is ... ...