Summary
In First National Bank of Oxford v. Mississippi Unemployment Compensation Commission, 1946, 199 Miss. 97, 23 So.2d 534, the court disregarded the terms of a contract and based its decision as to whether a janitor was the servant of the bank upon all of the facts.
Summary of this case from Mississippi Emplt. Sec. Comm. v. H. Hotel Co.Opinion
No. 35923.
October 22, 1945. Suggestion of Error Overruled November 12, 1945.
1. MASTER AND SERVANT.
Where bank regularly employed janitor for wages on part-time basis, furnishing tools and supplies used by janitor, bank was not interested only in "net result" of the employment, so as to establish that janitor was an "independent contractor" and not an "employee," within Unemployment Compensation Act, notwithstanding that under terms of the contract bank had no control over details of the work, and that during balance of the day janitor worked for another.
2. MASTER AND SERVANT.
Even where skill is required, if occupation is one which is ordinarily considered as a function of the regular members of the household or an incident of business establishment of employer there is an inference that actor is a servant.
3. MASTER AND SERVANT.
A servant regularly employed to labor for wages upon domestic or business premises of his employer, with tools and equipment of employer, although arrayed in livery of an independent contractor, is still a "servant."
APPEAL from the circuit court of Hinds county, HON. H.B. GILLESPIE, Judge.
James Stone Sons, of Oxford, for appellant.
This case is appealed from the circuit court of Hinds County. The appellant, the first National Bank of Oxford, was plaintiff in the court below and the appellee, Mississippi Unemployment Compensation Commission, was respondent there. The case involves the question of whether or not appellant is liable for contributions under the Mississippi Unemployment Compensation Act, Code of 1942, Section 7368-7446, both inclusive (Laws of 1936, Chapter 176; Laws of 1936, First Extra Session, Chapter 3; Laws of 1940, Chapter 205). This question, in turn, depends upon whether a janitor referred to in this case was an employee, or an independent contractor during the year 1943, it being undisputed that appellant had in its employment seven other covered employees during this period. If this janitor was an employee, appellant was liable for the contributions. If he was an independent contractor, appellant was not liable for the contributions.
Appellant was given notice by appellee, under Laws of 1940, Chapter 295, Section 12 (Code of 1942, Section 7414), to file with the Commission, appellee, within fifteen days from date, contributions and wage reports for the calendar year of 1942 and that, in case of failure on the part of appellant to do so, the Commission would determine and assess such contributions as the law provided. Appellant refused to file such reports, contending that it did not have eight covered employees in the calendar year of 1943. The Executive Director of the Commission made a determination of the contributions said to be due by appellant and gave appellant notice of this demand. Appellant filed a written protest of said assessment on the ground that the janitor in question was an independent contractor, and not an employee, and requested a hearing on this protest. By agreement of all parties, a hearing on the matter was held at Oxford and evidence was taken and transcribed. The entire evidence consisted of the testimony of O.O. Robbins, cashier of appellant, and of Jobie Strother, the janitor involved in this case. There was no dispute in this evidence. At the time of this hearing it was stipulated that a transcript of these proceedings would be submitted formally to the Commission for its decision upon this protest. On the evidence the Commission entered an order denying the protest of appellant and making final the prior assessment of contributions. The Commission found certain facts which were substantially correct except a finding of the Commission that the agreement with the janitor was not for a prescribed term. The Commission made a finding of law to the effect that the janitor was the employee of appellant during the period in question.
There being no method of appeal provided by the Unemployment Compensation Act from this type of decision by the Commission, appellant filed its petition for certiorari, under Section 1207, Code of 1942, in the circuit court of Hinds County. Order for the writ of certiorari was entered on the same day. This writ was issued, requiring appellee, the Commission, to bring up the whole record, including the transcript of evidence. Appellee filed a motion to strike the transcript of the evidence from the record on the grounds that the jurisdiction of the lower court was confined entirely to a review of the action of the Commission in overruling the protest of appellant as a matter of law and that the transcript of the evidence was no proper part of the record. This case was heard in the circuit court of Hinds County. That court sustained the motion of appellee, the Commission, to strike the transcript of the evidence from the record, affirmed the order previously entered by the Commission and rendered judgment accordingly. From that judgment appellant has prosecuted this appeal.
The lower court erred in striking from the record the transcript of evidence taken on the hearing before the Mississippi Unemployment Compensation Commission.
Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173; Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579; Robinson v. Mhoon, 68 Miss. 712, 9 So. 887; Gulf S.I.R. Co. v. Adams, 85 Miss. 772, 38 So. 348; Stone et al. v. Miller et al., 60 Iowa 243, 14 N.W. 781; Gilbert v. Board of Police Fire Commissioners of Salt Lake City, 11 Utah 378, 40 P. 264; Salt Lake Water Electrical Power Co. et al. v. City of Salt Lake City et al. (Utah), 67 P. 791; Thomas v. Hawkins et al., 12 Cal.App. 327, 107 P. 578; Golden Gate Title Co. v. Superior Court et al., 159 Cal. 474, 114 P. 978; In re Buckley, 218 Mass. 354, 105 N.E. 979; State ex rel. Sholund v. Mayor, etc., of City of Duluth, 125 Minn. 425, 147 N.W. 820; Rutter et al. v. Burke et al., 89 Vt. 14, 93 A. 842; Great Western Power Co. v. Pillsbury et al., 170 Cal. 180, 149 P. 35; Kenney v. City of Boston, 222 Mass. 401, 111 N.E. 47; Mallinger v. Webster City Oil Co. et al., 211 Iowa, 847, 234 N.W. 254; Klatt v. Akers (Iowa), 5 N.W.2d 605; Bump et al. v. District Court (Iowa), 5 N.W.2d 914; State ex rel. Pacific Telegraph Telephone Co. v. Department of Public Services et al. (Wash.), 142 P.2d 498; Sacharoff v. Murphy, Commissioner, et al., 44 N.Y.S.2d 117; Sloss-Sheffield Steel Iron Co. v. Watford, 245 Ala. 496, 17 So.2d 166; Thompson on Negligence (1901 Ed.), Sec. 640.
The lower court erred in affirming the order of the Mississippi Unemployment Compensation Commission holding that Jobie Strother was an employee of appellant and not an independent contractor.
McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315; Texas Co. v. Wheeless, 185 Miss. 799, 187 So. 880; American Oil Co. v. Wheeless et al., 185 Miss. 521, 187 So. 889; Indian Refining Co. v. Dallman, 31 F. Supp. 455, aff. 119 F.2d 417; Anglim v. Empire Star Mines Co., Ltd., 129 F.2d 914; Radio City Music Hall Corp. v. United States, 135 F.2d 715; Meredith Pub. Co. v. Iowa Employment Security Commission et al. (Iowa), 6 N.W.2d 6; Mutual Trucking Co. v. United States, 51 F. Supp. 114; Whalen v. Harrison, Collector, 51 F. Supp. 515; Yellow Cab Co. of D.C., Inc., v. Magruder, 49 F. Supp. 605; Burrus et al. v. Early Collector, 44 F. Supp. 21; Spirella Co. v. McGowan, Collector, 52 F. Supp. 302; Beaverdale Memorial Park, Inc., v. United States, 47 F. Supp. 663; Yearwood v. United States, 55 F. Supp. 295; American Oil Co. v. Fly, Collector, 135 F.2d 491, 147 A.L.R. 824; Murphy v. Tremont Lumber Co. (La.), 22 So.2d 79; Woodcock v. Startle et al., 84 Misc. 488, 146 N.Y.S. 540; Hayes et al. v. Board of Trustees of Elon College et al., 224 N.C. 11, 29 S.E.2d 137.
Harry M. Bryan and Henry Edmonds, both of Jackson, for appellee.
The transcript of testimony, taken by appellee on the status of appellant under the provisions of the Mississippi Unemployment Compensation Law, is no part of the record on certiorari to review its order thereon and the court below properly excluded same on motion of the appellee and was guilty of no error in so doing.
Yazoo M.V.R. Co. v. Mississippi Railroad Commission, 169 Miss. 131, 152 So. 649; Dixie Greyhound Lines, Inc., v. Mississippi Railroad Commission, 174 Miss. 1, 163 So. 443; Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 494, 120 So. 173, 121 So. 114; Simpson v. Phillips, 164 Miss. 256, 141 So. 897; Gulf S.I.R. Co. v. Mississippi Railroad Commission (Miss.), 152 So. 650; Federal Credit Co. v. Rogers, 166 Miss. 559, 148 So. 353; Hamilton v. Long, 181 Miss. 627, 180 So. 615; State ex rel. Brown v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124; Jones v. Cashin, 133 Miss. 585, 98 So. 98; Steele v. Shirley, 9 Smedes M. (17 Miss.) 382; Dismukes v. Stokes, 41 Miss. 430; McClanahan v. O'Donnell, 148 Miss. 478, 114 So. 336; Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579; Robinson v. Mhoon, 68 Miss. 712, 9 So. 887; Gulf S.I.R. Co. v. Adams, 85 Miss. 772, 38 So. 348; Code of 1942, Sec. 1206; 5 R.C.L. 260, Sec. 11; 42 C.J. 692.
Assuming, for the purpose of this argument, that the court should look to the transcript of testimony which the Commission considered in arriving at the facts on which it based its order, still there is no lack of substantial evidence to form the basis of such order at its hands.
Unemployment Compensation Law, Secs. 19(i)(1), 19 (i)(5).
The Commission properly held under the facts that the janitor, Jobie Strothers, was an employee of appellant and not an independent contractor and that consequently appellant was and is an employer within the coverage of the Act, and the lower court properly affirmed the order of the Commission.
Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Benjamin v. Davidson-Gulfport Fertilizer Co., 169 Miss. 162, 152 So. 839; McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315; Harper v. Wilson, 163 Miss. 199, 140 So. 693; Sadler v. Henlock, 119 Eng. Reprint 209, 4 El. Bl. 570; Tucker v. Axbridge Highway Bd., 53 J.P. (Eng.) 87; O'Neill v. Blase, 94 Mo. App. 648, 68 S.W. 764; Chicago, R.I. P.R. Co. v. Bennett, 20 A.L.R. 678; Threlkeld v. White, 8 N.Z.L.R. 513; Curry v. Addoms, 151 N.Y.S. 1017; Swift Co. v. Alston, 173 S.E. 741; Wass v. Bracker Construction Co., 240 N.W. 463; Decatur Ry. Light Co. v. Industrial Board, 276 Ill. 472, 114 N.E. 915; Cinofsky v. Industrial Commission, 290 Ill. 521, 125 N.E. 286; Restatement, Agency, Sec. 220, p. 483; Moll on Independent Contractors, p. 76; 20 A.L.R. 684, at p. 745.
Argued orally by Phil A. Stone, for appellant, and by Harry Bryan and Henry Edmonds, for appellee.
The question for decision is whether the bank's janitor is an employe as ruled by the Commission, or whether he is an independent contractor as argued by the bank. It is not necessary to decide whether we may look to the record of the evidence, the review being on certiorari, for the reason that if we concede for the purpose of the present controversy everything which the bank asserts that the evidence shows in its behalf, the judgment must still be affirmed.
The janitor during the remainder of his time when not serving the bank was employed as a member of the household staff of the bank's attorney, his duties to the bank as janitor requiring an active period of about an hour each week day, and for his convenience the janitor did his work at the bank during other than banking hours. The contract between the bank and the janitor, although never actually signed, has been put into the form of a written memorandum, and the agreement was carried out by the parties thereto strictly according to the contract, which is as follows:
"The First National Bank of Oxford, Mississippi, a corporation, and Joby Strother have this day entered into the following contract: —
"Joby Strother is to perform all necessary janitor services for said bank including sweeping, mopping, dusting, disinfecting, firing the furnace each day and putting ice in the water cooler. Strother is to perform this work at any time during the day it suits his convenience and is to do it entirely without supervision. He is not to perform any other services for the bank and is not to be available during the day when the bank is open for business.
"In the event that Strother is unable to perform these services on any day it is understood and agreed that he is to make his own arrangements for his substitute and pay such substitute himself without any supervision or selection by said bank. The said bank is to pay Strother the sum of $12.00 per month payable the first of each month beginning February 1, 1944. This contract is to terminate at midnight on December 31, 1944.
"Said Strother is not to receive any bonus or other payment from said bank except as set out before, the compensation set out above is to be his entire compensation under this contract."
It is conceded that in addition to the above terms the bank was to furnish, and did furnish, to the janitor a key to the bank and all the implements and supplies used by the janitor in the performance of his duties as such.
Under this state of facts the bank says that it was interested only in the net results of the employment, and that because under the terms of the contract strictly observed by the bank it had no control, and exercised no control, over the details of the work, the janitor was an independent contractor. In Jensen v. Barbour, 15 Mont. 582, 593, 39 P. 906, and in other cases to the same effect, annotated in 37 Words and Phrases, Perm. Ed., p. 475, the courts have addressed themselves to what is meant by the terms "result" or "net result," and have said that the terms as used in connection with the doctrine of independent contractor means a production or product of some sort and not a service; that plowing a field, mowing a lawn or driving a carriage is not a result in the sense that the word or term is used in the rule, and that such acts are simply a service.
We do not agree that in all cases it is necessary that there shall be some new product or something made into a different form, but we must be strongly persuaded that the work of a janitor, regularly employed, who sweeps and scrubs today and does the same tomorrow and every day, accomplishing nothing of a permanent nature, but only that which is temporary, from one day to another, and so on in succession, is not producing a net result as contemplated by the rule which is here invoked, although it might be, since every case of this kind must be decided upon its specific facts, that a janitor who is in that business as an independent trade, and who goes from one establishment to another, furnishing his own conveyances and tools and supplies, might be made an independent contractor.
No case has been found precisely in point with the facts of the case at bar, and counsel for appellant concedes that such a case cannot be found. The excellent briefs which have been presented by both sides disclose that the entire field of investigation has been exhausted. No case has been found where an employe working in his employment on the premises of the employer with the tools and facilities of the employer, not by the job, but day by day in the course of a regular employment for a long-time contract period and paid a regular compensation at the end of each month, and wherein the employe puts into the engagement nothing whatever except his labor, with nothing done by him which involves the exercise of any trade skill or business judgment, has been thought to be any other than simply a servant, and no case has been found where under such a state of facts it has been sought to change the relationship into that of independent contractor by a contract wich stipulates that the employer shall exercise no control whatever over the employe. That there is no such case in all the years that have passed in modern times is persuasive at least there ought to be none such now. If the real relationship, under such a state of facts, could be changed by a contract device such as last mentioned, employers could write themselves out from under nearly every workmen's compensation law or unemployment compensation statute in existence today.
In Kisner v. Jackson, 159 Miss. 424, 132 So. 90, we referred to the various formulas by which the courts have striven to define or describe what is meant by independent contractor, and there pointed out that the question at last is whether in the given case the contractor is actually independent. And "in this, as in many other cases, courts must look at transactions in their actual character, piercing through the screen of technical attitudes to what are the realities, and must regard substance rather than formal similitudes," Hederman v. Cox, 188 Miss. 21, 40, 193 So. 19, 24; and we now add the further observation that the field within which the doctrine of independent contractor may operate cannot be extended so as to embrace every form of employment. A single illustration is sufficient to disclose that the reach of the doctrine cannot be made universal. The family coachman or chauffeur cannot be converted into an independent contractor by any form of contract that may be drawn, for if all the incidents of control over his services were withdrawn by the contract he would no longer be a coachman or a chaufffeur, but would be only a taker of wages.
We have all heard, and more often in late days, of the family cook who will not work save with the distinct understanding that she is not to be supervised or directed as to any of the details as to how she is to do the work. Yet none would suppose that she is nevertheless, any other than a servant. Conceivably a housemaid, whose employment is in a large measure similar to that of a janitor, might insist as a condition of her employment, that she be free from all supervision of control, and that this by necessity or otherwise would be specifically accepted as an agreement by her employer, yet the maid or janitor regularly employed as such, would be, nevertheless, a servant.
Thus the pertinency of what is said in vol. 1, A.L.I. Rest. Agency, under Section 220, at pages 486, 487: "Even where skill is required, if the occupation is one which is ordinarily considered as a function of the regular members of the household or an incident of the business establishment of the employer there is an inference that the actor is a servant. Thus highly skilled cooks or gardeners, who resent and even contract against interference are normally servants if regularly employed." Italics ours. With equal reason a janitor, who puts into the service nothing but his labor, would be included and when so done, the quotation, which we endorse, covers the case now before us, without the necessity of further elaboration. We are of the opinion that a servant regularly employed to labor for wages upon the domestic or business premises of his employer, with the tools and equipment of the employer, although arrayed in the livery of an independent contractor, is still a servant.
Affirmed.