Zachos v. Huiet , 195 Ga. 780 ( 1943 )

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 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 are 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.

No. 14444. APRIL 14, 1943. REHEARING DENIED MAY 6, 1943. 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) (1) 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, B-6). 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 give 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 two 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: `I am selling Armour belt polish for some manufacturer in Georgia, and I am selling soap for a firm known as Sudad, and I know these fellows and have been calling on them and have been selling paint. Could I have your paint and sell your paint too?'

"When Mr. Brown first came he told us he had been selling radios to the same line of people. I do not know of any other independent line that Mr. Brown had, because I never saw Mr. Brown from the first day he came to the plant to the time he left. We never saw him any more. That's the first and last time we seen him.

"Mr. C. O. Gabbert was selling glass for windshields for some firm in Ohio, and also seat covers for some firm in Ohio. He has done, and is still doing it, still selling them.

"Mr. Pyles was selling some kind of burglar alarm, some kind of a thing that goes on an automobile for burglar protection.

"The money received by each of these four men did not require either of them to come to my office at any time. The work they did in selling paint was all done out of and away from our office. These facts were communicated to the investigator for the Bureau of Unemployment Compensation.

"The Zac-Lac Paint and Lacquer Company is successor to Zac-Lac Products Company. It is a continuation of that company. Mr. Gabbert was employed by Zac-Lac Products Company under the same terms and conditions that he continued for Zac-Lac Paint and Lacquer Company in 1941. All four of these men traveled outside of the State of Georgia. We did not have any written contract with them. The money these men received was commissions on sales already made by them. We fix the prices that we sold the paint to them. When they send an order to us they fix the price as to what the customer paid. They sent the orders in on an order book." 1. Unless Brown, Wood, Pyles, and Gabbert were employees within the meaning of the Georgia unemployment compensation law, Zachos did not owe the contribution sued for; for, without the four named, he did not for the year 1940 have the required number of employees to bring him under the provisions of the act. The preceding statement discloses all the evidence bearing on the question as to whether they were employees. In our judgment they were not. In selling paint these men worked for themselves. They were paid the difference between what the paint cost them and what they sold it for to the customer. They were in business for themselves. They were not required to work any number of hours in any particular day, or to see any number of persons on any one day, week, or month, or to make reports when sales were made. No territory was designated for them, and no employment of their time or services was had. They were not employees within the meaning of the act to be found in the Cumulative Supplement to the Annotated Code of 1933 as section 54-601 et seq.

2. Among the definitions given in the act (Cumulative Supplement, section 54-657, (N)-(n)), the word wages is defined as meaning "all remuneration for personal services, including commissions and bonuses, and the cash value of all remuneration paid in any medium other than cash." Section (B) (6) declares as follows:

"Services performed by an individual for wages shall be deemed to be employment subject to this chapter, unless and until it is shown to the satisfaction of the commissioner that:

"(A) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and

"(B) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

(C) Such individual is customarily engaged in an independently established trade, occupation, profession, or business."

If the verdict rendered in this case can be sustained upon any theory at all, it is that it was not shown to the satisfaction of the commissioner that the individuals come within the conditions named in subsections (A), (B), and (C), next above quoted. The effect of such a ruling would be to uphold a finding that the plaintiff in error should be compelled to make these named contributions, not because he was liable for them, but because it was not shown to the satisfaction of the commissioner that he was not liable As to other decisions made by those charged with the administration of the act, there is a provision expressly providing a Board of Review to hear and decide appealed claims (Cumulative Supplement, § 54-612 et seq.), with the right given to the aggrieved party to institute in the superior court an action against the commissioner for the purpose of having the court review his decision (Cumulative Supplement, § 54-619); but in the provision of the act here under attack there is no such right of appeal. If the person on whom demand is made for the contribution fails to satisfy the commissioner, he is at the end of his rope, so far as escaping liability. What the facts may be makes no difference. If, as was said by the Supreme Court in Western A. R. v. Henderson, 278 U.S. 577 (49 Sup. Ct. 176, 73 L. ed. 516), "Legislative fiat may not take the place of fact in the judicial determination of issues involving life, liberty, or property," a fortifier the finding of a bureau chief or a government department — head ruling can not do so, consistently with the guarantees embodied in the constitutions of this State and of the United States. The protective principles summed up in these due-process clauses extend to every proceeding which may deprive a person of life, liberty, or property, whether the process be judicial or administrative or executive in its nature. 16 C. J. S. page 1155, § 569; and especially Board of Levee Commissioners of Fulton County v. Johnson, 178 Ky. 287 (199 S.W. 8, L.R.A. 1918E, 202); People v. Scott, 326 Ill. 327 (157 N.E. 247).

The case of Toplis and Harding Inc. v. Murphey, decided by the Supreme Court of Illinois on January 19, 1943, has been examined and nothing therein decided constrains us to uphold, as against the constitutional attack, the provision of the Georgia act immediately involved. The commissioner of labor can not base his right to recover in the instant case on the fact that it has not been shown to his satisfaction that the three situations mentioned in subsection 6, (A), (B), and (C), quoted above, exist. In so far as those portions of the act attempt to do so they violate the due-process clauses of the State and Federal constitutions.

3. Other points made in the motion need not be considered, since the rulings above announced are controlling. The verdict being contrary to law and without evidence to support it, a new trial should have been granted.

Judgment reversed. All the Justices concur.