Young v. Bureau Of Unemployment Comp.

• Decision Date: 05 July 1940
• Docket Number: No. 28257.,28257.
• Citation: 10 S.E.2d. 412
• Parties: YOUNG. v. BUREAU OF UNEMPLOYMENT COMPENSATION, etc.
• Court: Georgia Court of Appeals

10 S.E.2d. 412

YOUNG.

v.BUREAU OF UNEMPLOYMENT COMPENSATION, etc.

No. 28257.

Court of Appeals of Georgia,

Division No. 2.

July 5, 1940.

Rehearing Denied July 30, 1940.

Syllabus by the Court.

The court did not err in sustaining the demurrer to the defendant's plea, and in finding in favor of the plaintiff.

Error from Civil Court, Fulton County; Robert Carpenter, Jr., Judge.

Action by the Bureau of Unemployment Compensation, etc., against Johnson S. Young, to collect sums of money alleged to be due plaintiff by defendant under the Georgia Unemployment Compensation Act, Laws 1937, p. 806, as amended by Laws 1937-1938, Ex.Sess., p. 356. To review a judgment for plaintiff, defendant brings error.

Affirmed.

The Bureau of Unemployment Compensation of the State of Georgia, by and through Ben T. Huiet, Commissioner of Labor, as administrator of the Georgia Unemployment Compensation Law, brought suit in the Civil Court of Fulton County against Johnson S. Young, to collect certain sums alleged to be due the plaintiff by the defendant on the basis of reports made and submitted to the plaintiff by the defendant, as an employer under the Georgia Unemployment Compensation Act. It was alleged in substance in the petition that while the defendant admitted his liability under the above act, he has failed and refused, after repeated demands, to pay the amount due by him thereunder. The plaintiff prayed for judgment in the amount claimed to be due by the defendant, with interest thereon at the rate of one per cent per month, as provided in the act. Attached to the petition as an exhibit appears a statement of the account of Johnson S. Young, purporting to show payments made by him under the act, and the amount of the balance claimed to be yet due, and sued for in the foregoing suit.

The defendant in his answer admitted among other things that he had made a report, but denied that he had admitted any indebtedness. Further answering the defendant alleged in substance that he is not indebted to the plaintiff for the reason that he does not operate his business on an employer and employee basis, that the operators in his barber shop are independent operators, in that they "merely lease" space in his shop in which to conduct their own individual businesses, that their relationship with him is that of lessor and lessees, and that because of this relationship he is not indebted to the plaintiff as an employer for the unemployment tax attempted to be levied upon him. Attached to the answer there appears a copy of an agreement purporting to be a lease contract entered into between the defendant and one of his operators, which is as follows: "This agreement entered into this 1st day of July, 1938, between Johnson S. Young & Marguerite C. Young, Trading as Artistic Barber & Beauty Shop of Atlanta, Fulton County, Georgia, hereinafter designated as Lessor, party of the first part, and Fisher Thornton of Atlanta County, Georgia hereinafter designated as Lessee, party of the second part, Wit-nesseth: 1. Subject to the terms and conditions hereinafter set forth, Lessor does hereby lease and grant to the Lessee the privilege of using certain space, to wit: Section No. 8 in the said shop of Lessor, located at 53 Decatur Street, S. E., Atlanta, Fulton County, Georgia, for the purpose of allowing lessee to practice his/her profession as a barber in common with other lessees who might be granted the same privilege by virtue of other leases, said Lessor reserving the right to designate the number of lessees using the said shop, so-called. 2. The terms of this lease shall be from the 1st day of July 1938, to and including the 30th day of June 1943. Unless either party gives written notice on or before the last day of any month during the term of said lease of his election not to continue after the last of the following month, in which event this lease and agreement shall terminate on said date. 3. The space leased shall be used by Lessee solely for the following purposes and no other, to wit: the conduct of a barber shop and to give service in said shop as is customarily given in said shops; including hair cutting, shaving, shampooing, and facials, etc. 4. The lessee agrees to furnish all the tools and equipment necessary to practice his/her profession. 5. Lessee agrees to pay Lessor as compensation for the lease and privileges hereby granted a sum equal to forty (40%) per centum on all sales, howsoever made. 6. Lessor shall supply Lessee with electric current for ordinary lighting and to operate the electric motors and vibrators installed by Lessee in the operation of his/her business and will furnish the ordinary water for consumption upon the premises. 7. Lessee agrees not to hold or claim Lessor responsible in any manner whatsoever for any damages, loss or destruction of any property of Lessee, whether or not kept in the space or spaces hereinbefore stated, or in any other space of the premises occupied by Lessor, or in his/her charge or care, or in the charge or care of his/her employees or agents, unless caused by the gross negligence or wilful misconduct of Lessor or his/her representatives. If said premises shall be unusable and unused by Lessee for one (1) month by reason of fire or the gross negligence of Lessor, and continuing for ten (10) days after notice, then Lessee shall have the right and option to terminate this agreement by giving Lessor five (5) days written notice of Lessee's election to terminate same. 8. Lessee agrees to hold Lessor harmless of and from all claims arising out of injuries to customers and employees or damages to property upon the aforesaid premises, or for violation of agreements made with customers or employees in said shop, and/or for all claims of every kind or nature whatsoever, whether or not of the aforesaid classes, made by third persons and arising from the dealings of Lessee, and all expenses with relation thereto or having reference to the investigation of any claims or the defense of any action or proceeding, unless caused by the gross negligence or wilful misconduct by Lessor and his/her representatives; Lessor is expressly granted the right to defend, compromise, or settle any claims made against him/her growing out of any transaction in said shop through his/her attorneys, after conference with Lessee and his/her attorneys, and Lessee expressly agrees to repay and reimburse Lessor for any such payments and expenses incurred. 9. Lessee agrees to comply with, observe and obey all laws, ordinances, statutes, rules, regulations and orders of the Federal, State and Municipal authorities and of the Board of Firemasters, and of any Health Department or other department performing the functions of a Health Department, that may be applicable to said shop and the space or spaces leased hereunder from time to time, and Lessor shall have the right after ten (10) days' notice to Lessee, to cause such rules, laws, orders, statutes, ordinances, regulations or demands to be complied with, charging the same thereof, (including penalty, if any) to Lessee, the same to be deductible from any funds then or thereafter coming into possession of Lessor. 10. Lessee agrees not to make any changes, additions, or alterations to or in the said department or space leased, or of any of the fixtures or fittings at any time therein, without first obtaining the written consent and approval of Lessor, and to permit Lessor to enter upon the aforesaid department and the aforesaid space or spaces, to make repairs, inspections, alterations or improvements thereto at any time. 11. Customers and employees of Lessee shall have ingress and egress to other departments in other parts of the shop of Lessor during usual business hours. 12. Lessee shall have the right to remove his/her tools, equipment and other property at the termination of this lease. 13. The covenants and agreements herein contained, shall be binding upon and enure to the benefit of the Lessor, his/her successors and assigns, and of the Lessee and his/her legal...