Zachos v. Huiet
| Decision Date | 14 April 1943 |
| Docket Number | 14444. |
| Citation | 25 S.E.2d 806,195 Ga. 780 |
| Parties | ZACHOS v. HUIET, Commissioner of Labor. |
| Court | Georgia Supreme Court |
Rehearing Denied May 6, 1943.
Syllabus by the Court.
1. Upon an examination of the undisputed evidence on that subject it must be held that the four paint salesmen named in the accompanying statement of facts were not employees within the meaning of the Georgia Unemployment Compensation Law.
2. That portion of the act above referred to, appearing as subsection (h) 6(A), (B), and (C) of section 54-657 of the Cumulative Supplement to the Annotated Code of 1933 Ga.L.1937, pp. 806 et seq., in so far as it undertakes to provide that services performed by an individual for wages shall be deemed to be employment, unless and until there is shown to the satisfaction of the commissioner the facts enumerated in the three subsections there following, is null and void, because violative of the due process clauses of the State and United States constitutions.
Huiet commissioner of labor, filed a suit against Zachos to recover a certain sum as unemployment contributions for the year 1940. The third paragraph of the petition alleged, in substance, that on January 1, 1941, and previously thereto and continuously since that date and on the date of the filing of the petition, the defendant was an 'employing unit' as that term is defined in section 19(f) of an act of the General Assembly of Georgia, approved March 29, 1937, (Ga.L.1937, p. 806 et seq.); that the defendant was during said period, and now is, an 'employer' within the meaning of section 19(g)(1) of said act, for the reason that for some portion of a day in each of twenty different weeks during the calendar year 1940, and during the calendar year immediately following, he had in his employment more than eight individuals used to prosecute and continue its business. It was stipulated that if J. W. Brown, Stanley P. Wood, Russell Pyles, and C. O. Gabbert were not such employees as came within the purview of the act, then the defendant would not be an employing unit and he would not be liable, while if they were, then that would bring him within the terms of the act, he would have more than eight, and would be liable as an employing unit if otherwise liable for the compensation sought. The defendant amended his answer by reciting that under the contentions of the plaintiff the persons named were employees, and therefore the defendant was subject to the provisions of the act because of what is contained in section 19(h)(6), Ann.Code, Cumulative Part, § 54-657, (h)(6)(B). Such divisions were attacked in that they were repugnant to art. 1, sec. 1, par. 3, of the constitution of this State, and violative of the fourteenth amendment of the constitution of the United States, in particulars pointed out in the amended answer. This amendment to the answer was stricken on demurrer, and error is assigned on that ruling.
Evidence was presented, and a verdict for the commissioner was rendered. A motion for new trial was overruled, and Zachos excepted. Complaint is made in the motion of certain rulings as to the admission and rejection of evidence, and on the charge of the court, and particularly as to that portion of the charge in which the judge instructed the jury that services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the commissioner that such individual is customarily engaged in an independently established trade, occupation, profession, or business.
The uncontradicted evidence on a vital question in the case was that of Zachos, who testified as follows: 'I am the defendant in this case. The arrangement with Mr. Brown was not a definite arrangement. Mr. Brown would come, if he wants to sell paint for us where he knows people, and ask could we let him sell paint for us. We told him, yes, we would let anybody sell paint for us, and he wanted to know how much commission we would pay him when he sells paint; that, of course, we could not definitely tell, because different articles they cost different, and we pay them a commission on whatever each individual article stands; and that's the only arrangement we had with him. Whatever he earned was commission on the sales he made. We did not give him a territory. Mr. Brown, when he started, his home is in Florida. In Florida he told us he had a few places he could sell, so he went to a few places in the northern part of Florida, which he hadn't been selling, and then next time he came he told us he wanted to go to Washington, D. C. We hadn't sold in Washington, D. C. So he went to Washington, D. C. and Maryland section, and so he sold some, and we paid him whatever commission he earned. We had no contract. We told them we did not know what and how much commission they would receive. If they sold an article for one dollar and our price had been ninety cents, then we will given them twenty cents. We have a definite price, and whatever he sells it for over that he gets it, provided we pass on the credit of the customer. The customer pays his commission. Their earnings were determined by the amount they sold. We signed the orders when the credits were approved. That is true of Mr. Wood, Mr. Pyles, and Mr. Gabbert.
'Selling paint is part of my business. The business of Zac-Lac Paint and Lacquer Company is manufacturing and selling paint. It was my paint business that they got markets for. That is what I arranged with them to do. To sell whatever paint we sell them for whatever they sell. Not necessarily to enlarge territory. We want to develop more territory. That is not necessarily why we put salesmen out. We have accounts. Let me explain this so you can get it right. Take for instance, we got Macon, Georgia. We sell in Macon about five people that we call a 'house account.' I personally sold these accounts. That is all we sell. This fellow comes along and says there is another fellow he can sell. We say, 'All right, if you can sell them, sell them, and we will pay you a commission.' He comes out and sells to the other fellow, but he is not selling to ones we call the 'house accounts.' That is our business. We have a certain amount to sell. We sell to any individual who wants to pay it. If we have a hundred gallons to-day, and you come to-morrow and want to buy two hundred gallons, we will make a hundred gallons and sell it to you. If you call that enlargement of business, I will say yes; if you don't call it enlargement of business, I will say no. We did not employ them. We just paid the ones that sold paint. We did not agree to anything because those men--we did not know when and where they would sell. We would get an order this morning and may be would not hear from them in weeks, and they would pop up in some other territory and sell an order. I don't call that employment. These men sold our paint. We agreed for them to sell it, and they agreed to sell it. We agreed for them to sell it, so we could get more business. They agreed to sell it, so they would have something to do. They accepted whatever profit they made on the business, and we are willing for them to do that. That was the understanding we had. Possibly you can call it to enlarge our paint business, or volume of sales. We are enlarging all the time. When we get more business, we enlarge. We did not give Mr. Brown, Mr. Pyles, Mr. Gabbert, or Mr. Wood any samples. We did not pay any of their expenses. We did not designate any territory for them. We did not designate any hours for them to work. We did not have any control or exercise any control over where they went or who they saw. We did not give them any instructions as to the method or manner in which to sell paint. We left it entirely to them. They did not report to the plant in Atlanta. Our plant was at 350 Simpson Street N. W., and is still there. They were not required to report to the plant in person at any time. We did not go with them in the territory; they went without any instructions from us in any way. We did not require them to work any number of hours in any particular day. We did not require them to see any number of persons at any particular day, week, or month. They are not required to make any reports to the plant of interview when any sales are made. They could come and go whenever they wanted to, and stop at any time.
Selling of paints is a full-year time of business.
'Yes, I know whether these men had other lines of business. They were selling other articles. Mr. Wood, when he came to us, here is the proposition that it was:
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