Union Dry Goods Company v. Cook

Full title: UNION DRY GOODS COMPANY v. COOK, revenue commissioner

Court: Court of Appeals of Georgia

Date published: Nov 3, 1944

32 S.E.2d 190 (Ga. Ct. App. 1944)

32 S.E.2d 190

Opinion

30623.

DECIDED NOVEMBER 3, 1944.

Illegality of execution; from Macon city court — Judge Baldwin. June 27, 1944.

Wallace Miller, Wallace Miller Jr., for plaintiff in error.

Clifford Walker, A. L. Henson, contra.

1. Under the facts of this case Union Dry Goods Company is an "employing unit" within the meaning and intent of the provisions of the unemployment compensation act (Ga. L. 1937, pp. 806, 840, sec. 19(f); Ga. Code Ann., § 54-657 (f), as to the operation of its shoe department and its beauty-shop department.

2. Where, as here, in the operation of a shoe department and a beauty-shop department in connection with a department store, the work of conducting such departments is not done solely by the employees of the alleged lessees, but some of the work is done by the company conducting the department store directly through its own employees, the company will be held liable for the contributions or taxes for the employees of the lessees of such departments, even though there are less than eight employees who work exclusively in each of the respective departments.

DECIDED NOVEMBER 3, 1944.

J. Eugene Cook, as Commissioner of Revenue, for the use of Ben T. Huiet, as Commissioner of Labor (hereinafter called the plaintiff), caused an execution to be issued against Union Dry Goods Company of Macon, Bibb County, Georgia, a corporation, as employer (hereinafter called the defendant), for alleged failure to pay contributions under the provisions of the unemployment compensation act. The defendant filed an affidavit of illegality denying that it was an employer as to the employees involved in the proceedings, and contending that the employees working in the shoe department and in the beauty-shop department were not employees of the defendant under the terms of the unemployment compensation act, but were employees of J. L. Stephenson, the lessee of the shoe department, and of Miss Lexie Mason, the lessee of the beauty-shop department; that the relation of landlord and tenant existed between the defendant and said lessees; that the defendant had always consistently followed the policy of leasing the privilege of selling shoes and running the beauty shop to other persons as lessees, and that the lessees are now and have been in business for themselves and not as agents for the defendant; that the defendant has never exercised nor assumed to exercise any supervision or control over the business conducted by its tenants. The plaintiff filed a traverse, in which he alleged substantially that the employees to whom reference is made in the affidavit of illegality are covered by and are within the meaning and intent of the provisions of the Georgia unemployment compensation act, and that the operators of the departments referred to are and have been a part of the usual trade, occupation, and business of the defendant, and that all workers in such departments are covered employees of the defendant as provided by and under the terms of the act.

The issue thus drawn was submitted to the trial judge without the intervention of a jury. The evidence consisted of (a) stipulations; (b) documentary evidence; and (c) parol evidence. The judge rendered a judgment based on his finding of facts and law in favor of the plaintiff. The defendant filed a motion for a new trial, which was overruled, and it excepted. Substantially, the evidence shows:

The stipulation material here is: "The Union Dry Goods Company, a corporation, engaged in the business of conducting a modern department store in its building on Cherry Street in the City of Macon, Georgia, is an employer as defined by and under the terms of the Georgia, Unemployment Compensation Law. As such employer it duly reports and pays taxes accordingly with respect to all employees except workers engaged in certain departments of said department store which the employer claims are leased to and operated by others, said employer further claiming that all workers engaged in such departments are employees of the alleged lessees of such departments; whereas, the Bureau claims that all workers engaged in such departments are covered employees of the Union Dry Goods Company. The scope of the case is limited solely to the question of the liability for taxes under the terms of said law with respect to workers engaged in the departments claimed to be leased to others." It is conceded by both parties that the agreement of the defendant with Stephenson concerning the shoe department is practically the same as that between the defendant and Miss Lexie Mason of the beauty-shop department. The agreements were in writing, but there is considerable parol testimony concerning the actual operation under these contracts, and concerning certain practice operations not covered under the renewed contracts. We will therefore first give the provisions of the two written agreements of the shoe department as they appear in the record, and afterwards give the parol testimony explaining the operation under either the original or renewed contract. "Lease contract between Union Dry Goods Company and J. L. Stephenson dated December 1, 1930: First. For the consideration herein named, the party of the first part does by these presents hereby grant, demise, and let unto the party of the second part, a space approximately 30x40 feet on the mezzanine floor of its store located at 417 Cherry Street, Macon, Georgia, as heretofore agreed upon, to be used and occupied for the sale of ladies' shoes, consisting of such merchandise as is usually sold in a shoe department, and not otherwise, for a term of five years (from February 1, 1931, to January 31, 1936), and in addition thereto, six continuous running feet of show window to be measured along the glass front at the entrance of the said store for a continuous display of shoes; also the use during the continuance of this lease [of] all of the lessor's present shoe shelving and fixtures. The right is reserved by both party of the first part and party of the second part, to cancel this lease at the end of the second year by either party giving to the other a sixty-day written notice of its intention to do so, or at the end of any year thereafter. It is further understood and agreed that lessee is not to carry merchandise which will conflict with the Juvenile Shoe Department now in operation, which consists of infants' shoes sizes 2 to 6, children's shoes sizes 6 1/2 to 12, growing girls' shoes sizes 2 1/2 to 10, misses and youth shoes sizes 12 1/2 to 2, boys' shoes sizes 2 1/2 to 9, with the understanding, however, that the growing girls' shoes are to be with heels no higher than what is known as 13/8; also rubbers and findings necessary for the shoe department.

"Second. And the rent to be paid by the said lessee to the said lessor shall be ten per cent. of the gross amount of cash sales and twelve and one-half per cent. of the gross amount of charge sales made by lessee's said department. And the lessee agrees that it will deliver to the cashier of the lessor, the proceeds of all sales in its department as fast as same are made. And the said amounts are to be retained by the said lessor until the tenth day of each month during the term of this agreement, at which time the said amounts, whether for cash or charge sales, less the agreed rentals, and less all merchandise returns, adjustments, and refunds, and less all sums advanced by said lessor for the payment of expenses such as advertising, wages, special delivery, and transportation, and all other expenses of said department, shall be turned over to the said lessee. Lessee further agrees that this rental shall be based upon net gross sales of $50,000 for the first year, with a 10 per cent. increase each year thereafter as a minimum during the continuance of this lease, namely: $55,000 for the second year; $60,000 [for] the third year; $65,000 [for] the fourth year; $70,000 [for the] fifth year — exclusive of infants, children, and misses shoes mentioned in preceding paragraph. Lessee agrees at the expiration of this lease to turn over to lessor, all records and lists of customers of its department and not to use same, or allow same to be used in any other store, and further agrees not to use the lessor's name in connection with any advertising whatsoever.

"Third. Lessor agrees to furnish without further compensation than herein set forth, delivery service as at present used by it in the city and suburbs of Macon, or as hereafter changed or modified to meet its demands, and to furnish electric light, heat, janitor, and general store service as furnished other departments, but lessee agrees to pay for special deliveries, and to furnish at its own expense, carpet, chairs, and all other necessary furnishings for said department.

"Fourth. It is further agreed that the lessee will allow a discount of ten per cent. on all sales made to the employees of the lessor. It is further agreed that the lessee must have an experienced and competent person in charge of said department at all times. And the said lessee agrees that it and its employees will conform to the rules and regulations of the said lessor in regard to the fair and courteous treatment of customers, discipline, hours of arrival and departure, dress, etc., as they at present exist, or as they may be changed or modified by the said lessor, it being distinctly understood that the employees of the lessee shall be under the control of the superintendent of the lessor. And the lessee further agrees that it will conform to the policy of the lessor in the matter of exchanges on merchandise, or refunds for merchandise, it being understood that the store management shall retain the right of final judgment of all differences between customers and the lessee's department. The lessor reserves the right to discharge any person or persons employed in said department in case behavior or conduct of such person or persons is detrimental to the business of the lessor. Of such conduct the lessor shall be the sole judge.

"Fifth. The lessee agrees that it will not deal in, or offer for sale, any goods, stocks, or chattels similar to those dealt in by the lessor or in any of its other rented departments. And the lessor agrees not to deal in or offer for sale, or permit any other of its lessees to deal in or offer for sale, any goods, stocks, or chattels of any nature similar to or like those dealt in by the lessee that is not already being carried by the lessor. And lessee agrees not to open up, or become financially interested in, any other business in this City of Macon during this lease.

"Sixth. The lessee agrees to furnish and pay for all merchandise needed, and to keep its stock up to standard requirements at all times for a department of this kind, with such kind and class of merchandise as is in keeping with the other departments of the lessor's store, and pay all help necessary for the conduct of said shoe business, and its own wrapping paper and box supplies, and pay all transportation charges on its own merchandise. The lessee agrees to insure at its own expense, all of its own goods while in the premises of the lessor or in said department, and further agrees to hold said lessor harmless for any loss by fire incurred on the premises of said lessor. The lessee agrees to pay all taxes assessed against its said department. Lessor agrees to expend a sum not less than two per cent. of its sales for newspaper advertising in this department. Lessor reserves the right to carry themselves or by lease, a full line of I. Miller shoes, or any other standard shoes of similar prices.

"Seventh. It is further agreed that all advertising done by the lessee will be in the name of and submitted for approval to the lessor, and said lessee shall have the free use of the advertising contracts of said lessor, and all advertising that is done jointly shall be proportioned according to the space used. It is further agreed that the said lessee shall have no interest whatsoever in the business carried on by the lessor except as herein stated, but same shall be conducted in name of lessor.

"Eighth. And it is further agreed between the said lessor and the said lessee that in case the building or buildings erected upon the premises hereby leased shall be partially damaged by fire, same shall be repaired as speedily as possible at the option and at the expense of the said lessor; that in case the damage shall be so extensive as to render the building untenable the rent shall cease until such time as the building shall be in complete repair, but in case of total destruction of said premises by fire or otherwise, the rent shall be paid up to the time of such destruction and then and from thenceforth this lease shall cease and come to an end; provided, however, that such damage or destruction be not caused by the carelessness, negligence, or improper conduct on the part of said lessee, its agents or servants. And the lessor shall not be responsible to the lessee for any damages caused by leakage of water from any part of said building; or from city water pipes, waste or soil pipes, closets, or from any cause or manner whatsoever.

"Ninth. The lessee further agrees that in the matter of charge accounts same shall be passed upon by lessor's credit department, and the lessor hereby guarantees payment of all accounts accepted by its credit department. It is agreed by the lessee that in the event of any disagreement or dispute regarding merchandise or trade transactions between the lessee and public or third persons, in general or in the event of strikes, lockouts or labor disputes, the decision of the lessor is to be final, and the lessee agrees to be bound thereby.

"Tenth. The lessee agrees as a further consideration of this lease and the execution thereof by the party of the first part, to release, and said lessee does hereby release, said lessor from any and all claims of every nature whatsoever for damages arising from personal injury by reason of any defects of said premises or any appurtenances thereto belonging, or for negligence of the lessor, or any of its employees, or any one in or about said premises, and the lessee does hereby covenant and agree, in consideration of the execution of this lease by the lessor, to save the said lessor harmless of and from all claims and demands of every kind whatsoever arising from the use or occupancy of said premises by lessee, or any of the appurtenances thereunto appertaining or connected therewith.

"Eleventh. It is further agreed that all the goods purchased by said lessee shall be purchased in its own name, but the lessor shall have the right to receipt for such goods when delivered in the name of said lessee. The lessee agrees not to place any sign or advertising matter upon said demised premises or any part of the premises of the lessor except upon such places as may be described by the lessor. It is also agreed that the lessor or its officers shall have access to the premises so demised at all times so that it can see to it that the provisions of this agreement are carried out, and the lessee agrees to pay any and all expenses incurred by the lessor in enforcing the covenants of this lease, including a reasonable attorney's fees.

"Twelfth. And the said lessor does covenant that the said lessee on paying the said rent and performing the covenants aforesaid shall and may peaceably and quietly have, hold, and enjoy the said demised premises for the term aforesaid. And the said lessee does covenant that at the expiration of the said term it will quit and surrender the premises hereby demised in as good condition as reasonable use and wear thereof will permit, damages by the elements alone excepted, unless continuance is mutually agreed upon.

"Thirteenth. It is hereby further agreed that the lessee shall purchase the initial stock of shoes, which shall not be less than $10,000, at factory cost price, and shall maintain said amount of stock and such additional stock as shall be necessary for the said department. All shoes to be new stock, and not to be subleased in whole or in part without written consent of lessor.

"Fourteenth. It is further understood and agreed that the covenants and agreements contained in the within lease are binding on the parties hereto and their legal representatives, heirs, successors, and assigns."

The second lease contract, to which reference is made from time to time in the instant case, reads as follows: "Lease contract between Union Dry Goods Company and J. L. Stephenson dated February 1, 1941: 1. For the consideration hereafter stated, lessor hereby leases to lessee a space approximately thirty feet by forty feet on the mezzanine floor of its store, located at 417 Cherry Street, Macon, Georgia, as now occupied by lessee, to be used by the lessee for the sale of ladies' and children's shoes, and for no other purpose. This lease carries with it the right on the part of the lessee to use six continuous running feet of show-window space, to be measured along the glass front at the entrance of said store, for the continuous display of shoes during the life of this contract. This lease shall commence on the 1st day of February, 1941, and shall continue for a period of one year, and shall continue from year to year thereafter until terminated by either party by giving written notice six months prior to any anniversary date, such notice to be sent by U.S. registered mail, addressed to the other party at the usual business address.

"2. As rent for the use of said space, lessee agrees to pay lessor eleven and one-fourth per cent. of the gross amount of cash and credit sales made by lessee. Not later than the 15th day of each month there shall be rendered by the lessor unto the lessee a complete statement showing the amount of all sales, both for cash and on credit, made by the lessee during the preceding month, and the expense and disbursements paid out by the lessor during the said preceding month for and in behalf of the lessee, such as salaries for the lessee's employees, advertising, freight, drayage, cash refunds, and the like; and after deducting from the aggregate of the sales, including cash and credit sales as shown by said statement, the amount of expenses and disbursements paid out by the lessor on account of the lessee, together with the rentals due the lessor, as hereinbefore provided, the lessor shall pay to the lessee the balance shown by each of said statements the 15th day of the month following.

"3. As a part of the consideration of this contract, lessee agrees that at the expiration of this lease he will turn over to the lessor all records and lists of customers of the leased department, and will not use the same or allow the same to be used in any other store, and further agrees not to use the lessor's name in connection with any advertising whatsoever.

"4. Lessor agrees to furnish, for the consideration aforesaid, the same delivery service in the City of Macon and its suburbs that lessor provides for itself, with the exception of special delivery service, the cost of which lessee shall defray; also, to furnish lessee with electric lights, heat, janitor and general-store service, the same as furnished other departments, lessee, however, to furnish at his own expense carpets, chairs, and all other necessary furnishings for the leased department.

"5. The lessee agrees that he will allow a discount of ten per cent. on all sales of the shoe department made to employees of the lessor.

"6. The lessee agrees that he will not operate or become financially interested, either directly or indirectly, in any other business in the City of Macon during the term of this lease.

"7. Lessee agrees to keep insured, at his own expense, his entire stock of merchandise while in the store building of the lessor or in said department, and further agrees to hold the lessor harmless for any loss growing out of fire or other casualty occurring on the premises of lessor. Lessee further agrees to pay all State, county, municipal, and Federal taxes which may be assessed against or chargeable to him or to his leased department.

"8. Lessee agrees that all advertising shall be in the name of the lessor and shall be controlled and handled by the advertising office of the lessor, with the understanding that lessee shall enjoy the benefits of the lessor's advertising contracts; and the cost of all advertising that is jointly done shall be proportioned according to the space used.

"9. It is further agreed that in case the building in which the leased department is located shall be partially damaged by fire, the same shall be repaired as speedily as possible at the option and at the expense of lessor. In case the damage shall be so extensive as to render the building untenable, the rent shall cease until such time as the building shall be restored to complete repair. But in the case of total destruction of said premises by fire or otherwise, the rent shall be paid up to the date of such destruction, and from thenceforth this lease shall cease and determine; provided, however, that such damage or destruction is not due to the carelessness, negligence or other improper conduct on the part of the lessee, his agents, and servants.

"10. Lessee further agrees to indemnify the lessor and to hold the lessor harmless from any and all claims for personal injury or property damage growing out of any defects in the leased premises or any of the appurtenances thereof, or from any negligence on the part of the lessee or on the part of the employees of the lessee or the lessor in and about the leased premises, or from the occupancy of said leased premises by the lessee.

"11. It is agreed that all goods and services purchased by the lessee shall be purchased in his own name, but the lessor shall have the right to receipt for such goods when delivered in the name of the lessee.

"12. This lease and any rights accruing thereunder to the lessee are personal to the lessee and shall not be assigned or conveyed to any person; and, notwithstanding the term of the lease provided for herein, the lease shall terminate at the option of the lessor upon the death of the lessee."

Parol evidence: The Union Dry Goods Company is the modern idea of a department store; it owns and has its business located in a building about sixty-seven feet by two hundred feet, containing five stories and a balcony, located in the heart of the business district of the City of Macon. It is one of the largest stores south of Atlanta, consisting of twenty or twenty-five departments; there are four of these departments which are operated under what is termed leased departments, including the shoe department and the beauty-shop department. The company, during its forty-five years in business, has never operated the shoe department nor the beauty-shop department except under what is termed a lease arrangement, from the time these departments were started about twenty years ago. The entire space of the building is used for the Union Dry Goods Company in carrying on its idea of a modern department store. There are only two entrances to the building, and the manager keeps the keys and opens the store each morning, and closes the same in the evening. The lessees have no keys, and conform to the hours as fixed by the company. The company has never financed either of the departments in question; has never become responsible for either's purchases, or made any purchases, or hired any employees of the lessees. The company has nothing to do with retail sales or sale prices of shoes. The advertising for the shoe department both in newspapers and over the radio is done in the advertising name of the company. So far as the general public is informed or knows, the shoe department belongs to the company as formed or knows, the shoe department belongs to the company as do any of the other departments not operated under what is generally known as the lease system. But the lessee does pay his proportionate part of the advertising in the newspapers and over the radio according to his proportionate part of the space used, at the reduced rates obtained by the company. All sales from the shoe department are made out on the company's sales slips, as are sales in all other departments. The money from the sales in all the leased departments is put into the common till along with money from all other departments; the bookkeeping is all done by the company; statements covering sales where credit is extended are sent out by and in the name of the company; payment for such sales is remitted in the name of and to the company, and receipts for such payment issued by and in the name of the company; deliveries for the shoe department are made by the employees of the company, and in the name of the company, except special deliveries; janitor service is furnished by the employees of the company; lights and water are furnished by the company; the company passes on all credit and sustains the loss of insolvent credit sales. The company advances from its common fund expenditures for the month, within accrued percentage due the lessee under the contract, on or before the tenth of the following month refunds to the lessees their proportionate shares of the gross sales as stipulated by the written agreement. All cash received by the shoe department is delivered to the company's cashier as fast as received; all records and computations and divisions of settlement are made by the company's bookkeepers and accountants. The company reserved the right to discharge employees of the lessee who proved to be detrimental to the company. The reason the company operates the shoe department under what is known as the lease system instead of as it does the other departments is because this method of operation is more profitable to the company than to operate the department as the other departments are operated. The company does not lease any space or do any leasing business other than in connection with its department store and its space is fully occupied in this enterprise. "Everything . . testified to with respect to the relation of [Union Dry Goods Company] and Mr. Stephenson [lessee of the shoe department] as a tenant of the [company] has equal application to Miss Lexie Mason operating the beauty parlor, and the history of the two departments are very similar as to tenure and the intermission between leases."

With reference to the two leases, copies of which we have set forth above, the manager of Union Dry Goods Company testified that the agreement between the company and Mr. Stephenson dated December 1, 1930, was not changed until February 1, 1941, at which time Mr. Stephenson took in a partner who wanted a contract, and hence some changes as to the stock to be carried, gross sales, etc., were made on account of the depression. The testimony shows that the practical operations under both written agreements are practically and substantially the same. He further testified: "The advantage of maintaining a beauty parlor and other leased departments is a mutual advantage, to have the name, good will, reputation, and character, etc., in order to bring more customers into the store." The whole evidence shows that the leased departments are but units of the whole, that is, units of a modern department store operated by Union Dry Goods Company. "In other words, if I were renting a store on Cherry Street [the street on which the defendant's business is located] and put in a shoe store, I would think that a rental based on five per cent. of my gross receipts was a proper rental where I would bear all the other expenses. This additional five or six per cent. covers everything else we do for him." The evidence further shows: "Last year his [meaning Mr. Stephenson's] gross sales were $121,000. When we changed the rent we made it a flat 11 1/4 per cent. to keep down a whole lot of figuring in the bookkeeping, and his rent amounted to over $13,000 for this space."

While we have not gone into detail as to the evidence concerning the transaction under consideration, we feel that we have given in substance a sufficiency of it to present a true picture of the legal relation existing between the plaintiff and the defendant and the employees in the shoe department and in the beauty-shop department, which departments are being operated under the same rules so far as the public is concerned — in the main, under the competent management and direction of the defendant's executive officers. The evidence shows that the employees working exclusively in the shoe department were five, and in the beauty-shop department, from four to six.

GARDNER, J.

1. The trial court found in favor of the plaintiff, reasoning (correctly, we think,) that the facts of the case placed liability on the defendant under the provisions of the unemployment compensation act as set forth in Ga. L. 1937, pp. 806, 840, sec. 19 (f); Ga. Code Ann., § 54-657 (f), which reads in part as follows: "Whenever any employing unit contracts with or has under it any contractor or subcontractor for any work, which is part of its usual trade, occupation, profession, or business, unless the employing unit as well as each such contractor or subcontractor is an employer by reason of subsection (g) of this section or section 54-823, paragraph (c), the employing unit shall for all the purposes of this chapter be deemed to employ each individual in the employ of each such contractor or subcontractor for each day during which such individual is engaged in performing such work; except that each such contractor or subcontractor who is an employer by reason of subsection (g) of this section or section 54-623, paragraph (c), shall alone be liable for the employer's contributions measured by wages payable to individuals in his employ, and except that any employing unit who shall become liable for and pay contributions with respect to individuals in the employ of any such contractor or subcontractor who is not an employer by reason of subsection (g) of this section or section 54-623, paragraph (c), may recover the same from such contractor or subcontractor. Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of this chapter, whether such individual was hired or paid directly by such employing unit or by such agent or employee, provided the employing unit had actual or constructive knowledge of such work."

In the passage of this act the legislature saw fit to express in unmistakable terms the public policy of the State with reference to this legislation. We think it well for our appellate courts, in passing upon the cases arising under this law, to keep the expressions of the legislature uppermost in mind in order that they may better understand the intent of the legislature in applying the provisions of the act to the facts of each case as they are presented. For this reason we quote section 2 of the act (Ga. L. 1937, p. 807; Ga. Code Ann., § 54-602): "As a guide to the interpretation and application of this chapter, the public policy of this State is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this State. Involuntary unemployment is therefore a subject of general interest and concern, which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker or his family. The achievement of social security requires protection against the greatest hazard of our economic life. This can be provided by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this State require the enactment of this measure, under the police powers of the State, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own."

The trial judge in passing on the motion for a new trial reduced his judgment to writing. So well did he cover the salient facts and so cogent is his reasoning in applying the law to the facts that we feel justified in copying it here in the main, and adopting it as a part of this opinion. Here it is: "Counsel for the plaintiff earnestly insists that section 19 (h) (6) of the act is applicable in this case, and that employees of Stephenson and Mason receive `wages' as defined in section 19 (n) of the act. The question, so far as this section of the act is concerned, may also be stated: `Were services performed by the employees of Stephenson and Mason for the [Union Dry Goods Company] for wages?' This court is bound by the decision of the Court of Appeals in the case of Huiet v. Great Atlantic Pacific Tea Co., 66 Ga. App. 602 ( 18 S.E.2d 693) which case dealt with the very section now under consideration. As was stated in the A. P. case, it may likewise be stated in this case: `There is no evidence of subterfuge, no circumvention, no scheme not to comply with the law.' The parties to the present case find themselves honestly disagreeing as to whether or not the act covers the work of certain employees performed in the Union Dry Goods Company Building. It is well established that the consideration for a lease may either be a fixed rental, as was true in the A. P. case, or it may take the form of a percentage of the gross business done, as in the case at bar. Indeed, the modern method of preparing lease contracts is to provide for a rental based upon the gross volume, or upon the success of the business, with some fixed guaranteed minimum rent. Therefore, it must be said in this case, as was true in the A. P. case, that services were not performed for wages for the [Union Dry Goods Company]. The lessees merely paid rent to the lessor and wages to their employees. Having come to the conclusion that services were not performed for wages, in the employment of the [company], then subsections A, B, and C become immaterial, although it is my opinion, and I believe it would be conceded by counsel for the defendant, that the [company] has been unable to prove either of the subsections. I have given due consideration to the case of Young v. Bureau of Unemployment Compensation, 63 Ga. App. 130 ( 10 S.E.2d 412), and Brewster v. Huiet, 69 Ga. App. 593 ( 26 S.E.2d 198), but nothing in these cases changes my view of the applicability of the A. P. case.

"Counsel for the plaintiff also insists on the proposition that regardless of whether section 19 (h) (6) is applicable in this case, that section 19 (f) (2) of the act applies, and that in either event, for the purpose of the unemployment compensation act [Union Dry Goods Company] is deemed to employ each of the individuals in both of the leased departments. When one bears in mind the common-law meaning of the relationship of master and servant, it is most difficult to construe the relationship of employees of Stephenson and Mason to the Union Dry Goods Company as being one of employment; but in construing the Georgia unemployment compensation act, the court must bear in mind the beneficial purpose for which the act was enacted, and also is bound by the statutory definition of the various words in the act. `In determining the meaning of the word "employment" as used in the unemployment compensation act, the Supreme Court of Appeals was bound by the statutory definition of that word in the act, rather than by the common-law meaning of the master and servant relation.' Life Casualty Ins. Co. v. Unemployment Commissioner, 178 Va. 46 ( 16 S.E.2d 357). `The courts, as well as the administrator of the unemployment law, in construing and applying the provisions of such law must liberally construe and apply such law in the light of the public policy of this State, as declared in section 2 of the act. The courts shall be guided by the fact that the unemployment compensation law is intended to provide some income for persons who are, without fault of their own, temporarily out of employment.' Young v. Bureau of Unemployment Compensation, supra.

"In reviewing the evidence in this case, I am forced to the conclusion that [Union Dry Goods Company] is not in the business of leasing department, but it is in the business of operating a modern and up-to-date department store. The shoe department is but another one of its units comprising the whole. It is admitted by the defendant that the only reason the shoe department is not operated directly is because experience proves that the method of operating by lease is more profitable to the [company]. . . In applying the factual findings in this case to section 19 (f) (2) of the act, it is necessary at all times to bear in mind the decision. . . in the case of Jeffreys-McElrath Manufacturing Co. v. Huiet, 196 Ga. 710 ( 27 S.E.2d 385), for that is the only case in Georgia dealing with this section of the act. The case of the A. P. Tea Company, supra, is not in point so far as this section of the act is concerned, because the court in that case, in declaring that the prerequisite finding of `employment' could not be established, dealt only with section 19 (h) (6), as employment is defined in that section, and did not have before it section 19 (f) (2) of the act; thus failing to invoke the definition of employment as contained in that section.

"As was stated . . in the Jeffreys-McElrath case, at page 719, `While there may have been other purposes inducing the enactment of this section (referring to section 19 (f) (2)), it seems to us that at least one purpose was to prevent owners of large unitary businesses from breaking them up into small operations, and thereby defeating the objects intended by the General Assembly.'

"While it is true that no fraud or subterfuge has been practiced in this case, and the parties are absolutely honest, the effect of exempting these employees from the provisions of the act would serve the same purpose; that is, to permit one with the best of intentions to discontinue operating his large unitary business directly, and to operate it by contracting with various managers through leases, would have the same undesirable effect, regardless of the bona fide nature of the transaction. The very purpose of section 19 (f) (2) is to protect all of the employees of a unitary business, whether or not each department has fewer than eight employees, provided the business is an employing unit.

"It is immaterial whether the parties come within the relation of master and servant or independent contractors. The act itself fixes of the status of their employment which brings them within the terms of the act, and renders the employer liable for the contributions required by the act. As stated by the Supreme Court of Washington in McDermott v. State, 196 Wn. 261 ( 82 P.2d 568), in construing an act similar to the Georgia act, `It is unnecessary to determine whether the common-law relation of master and servant exists between respondent and the barbers and other operatives in his shop, because the parties are brought within the purview of the unemployment compensation act by a definition more inclusive than that of master and servant.' Young v. Bureau of Unemployment Compensation, supra.

"Employment, as defined in section 19 (f) (2), has a much broader meaning than it has under the common law. The business, the work, of [Union Dry Goods Company] is to operate a department store, and a necessary part of its usual business is the selling of shoes and the operation of a beauty shop. It matters not whether the managers of its departments receive a salary from the [company] or a percentage of the profits. If the act could be made ineffective by leasing departments and thus destroy the effect of the beneficial provisions therein provided, section 19 (f) (2) would indeed be meaningless, for it was enacted primarily for the purpose of preventing any such method of evasion. By this I do not mean to say that any of the parties in this case have ever had any intention of evading the act, because I am sure their position is based upon an honest interpretation of the statute.

"I am further forced to the conclusion that [Union Dry Goods Company] is (a) an employing unit; (b) it has under it a contract with Stephenson and Mason, which contract is much broader and contains many more indicia of the right of control and supervision than what is known as a simple lease contract (c) for work of providing shoes and beauty-parlor services for the [company's] customers, (d) which is part of its usual business of operating a modern and large department store. (a), (b), (c), and (d) being true, then under section 19 (f) (2) the [company] is deemed to employ each of the individuals in both departments. . . It actually operated the same bookkeeping department for Stephenson and Mason as for the departments operated directly. That is, part of the shoe-department business and beauty-shop business was done directly by the [company's] covered employees. Not only may bookkeeping be mentioned, but it is inferred the money was kept in the same bank account; the telephone service was the same; the same janitor service; the same sales slips; the same parcel-wrapping service; the same delivery service; part of the fixtures were owned by the [company]; the credit department was the same for the leased departments and the directly operated departments; the same cash system was used by all departments and staffed by directly employed servants.

"If this defendant was permitted to escape the requirements of the act, then it could be said that a portion of all the services performed directly by certain employees were performed for independent contractors or lessees, whose compensation was included in the percentage received by the [company], and thus we readily see a multitude of confusion would result.

"Unitary businesses can not thus evade the act. Section 19 (f) (2) was enacted for the very purpose of preventing such a plan from having such effect, whether such plan of operation is bona fide or a subterfuge. This section does not mention fraudulent arrangements, and it may be noted here that Jeffreys-McElrath, supra, was absolutely honest in its position and plan of operation, but the employees of the sawmillers who went into the woods and cut the standing trees under a contract based upon the number of feet cut were held to be covered under this section. . . The very nature of a department store contemplates the operation of a number of small units. If section 19 (f) (2) means anything, it means that all of the employees making up the whole shall be covered employees, whether they are directly employed through subcontractors, whether we call the contract a lease or business contract or what not.

"For the purposes of clarification, let us consider this illustration: Suppose X went into the automobile business. He has six salesmen, one porter, and two bookkeepers, making him an `employer and employing unit.' He decides it will be to his advantage to lease out the repair department to another, the lubricating, greasing, and washing department to still another, and enters into a lease contract with each of them, based upon a percentage of the profits. They are held out to the world as the `X Auto Company.' X has the right to restrict the lessees to serve only his customers, to handle only parts for the cars he sells, to advertise as being the shops or departments of `X Auto Company.' His office handles all the bookkeeping, cash and credit accounts for the lessees, and he requires the lessees to employ only competent mechanics, and maintain a standard of service in keeping with the policy of his car business. Would one for a moment entertain the idea that these departments were not under a contract for work which is part of his usual business? Section 19 (f) (2) was enacted to cover this very situation. . . It was held in the Jeffreys-McElrath decision that the term `usual business' depends upon whether this class of work was done solely by contractors, or whether directly, so as to be a part of its usual business. It is true that [Union Dry Goods Company] has never operated a shoe department or beauty-shop department directly, but, on the contrary, it has always provided these services to its customers under a lease contract. The same is true in the Jeffreys-McElrath case. Reading at page 713: `Then we have the sawmills, you call it peckerwoods or round mills, that are independently owned. We do not own any of them. I am now speaking of our practice from the start of our business back in 1919.' Applying the test as declared by Judge Bell speaking for the Supreme Court, that is, whether the class of work was done solely by contract, or whether a part of it was usually done by the defendant directly, we reach the inescapable conclusion that the operation of the various units in this department store was the very business of the defendant, and that an essential part of the work of the leased departments was not only usually, but consistently done by the defendant directly. Thus, we can reach no conclusion other than the shoe department and the beauty-shop department of the Union Dry Goods Company is a part of its usual business."

As we have heretofore stated, the trial court, under the facts of this case, was correct in his judgment finding that the defendant is an employing unit within the purview of the unemployment compensation act as defined and set forth under the provisions of Ga. L. 1937, pp. 806, 840, sec. 19 (f); Ga. Code Ann., § 54-657 (f), as copied above.

2. It may be superfluous to add anything further, but there is one further phase of the evidence that we might, with propriety, discuss, and that is this: The evidence shows that the employees who worked exclusively in the shoe department were five; that the gross sales for a year were $121,000; that the defendant received 11 1/4 per cent. of the gross sales, or $13,612.50. The manager testified that five per cent. of the gross sales, or $6,050, was a reasonable rental for the space occupied by the shoe department in the company's building. This amount, deducted from the $13,612.50, which the defendant received from the shoe department, leaves a difference of $7,562.50, which was for other services in the shoe department of the lessee. Let us look to the record further. These other services consisted partly of water, heat, and lights. We have no intimation as to the amount of these items. Other services taken care of by this sum of $7,562.50 consist of (a) janitor services; (b) bookkeeping; (c) delivery services; (d) wrapping; (e) credit service; (f) collection service; (g) cashier service; (h) making advancements; (i) accounting services and the like. All of these services were performed for the shoe department by the employees directly under the defendant's management and control. A volume of business producing such a large amount of gross sales is to our way of thinking a rather larger business. As to whether or not, if the shoe department now in question had used the $7,562.50 to supply its own heat, water, lights, and other services, which the defendant furnished to the shoe department, this would have required three additional employees in the shoe department, thereby making eight employees and bringing the shoe department under the provisions of the unemployment compensation act, we are unable to say, from the record. Be this as it may, we have no difficulty in reaching the conclusion that so far as the operation of the shoe department is concerned, Union Dry Goods Company furnished much work from its own employees to carry on this enterprise. In fact, the company furnished the services of their own employees to the extent of $7,562.50, less the value of the lights, water, and heat furnished. Therefore it necessarily follows that the lessees, Stephenson of the shoe department, and Mason of the beauty-shop department, did not exclusively hire and control and direct all of the employees who were necessary to operate such departments.

We may here revert again to the decision of the Supreme Court in Jeffreys-McElrath Manufacturing Co. v. Huiet, 196 Ga. 710 (1 b) (supra), wherein the court said: "If the hauling of rough lumber from contractors' mills to the defendant's manufacturing plant was done solely by contractors, none of such work being done by the defendant directly through its own employees, the work so performed by the contractors would constitute no part of the defendant's usual business, within the meaning of such statute." By reference to that case it will be discerned that the Supreme Court reversed the judgment of the lower court in holding that the Jeffreys-McElrath Manufacturing Company was an employing unit regarding the phase of hauling rough lumber, under the provisions of section 19 (f) of the unemployment compensation act of 1937. The facts as to hauling the lumber from the contractors' mills to the defendant's manufacturing plant did not obtain there as here. In the Jeffreys-McElrath case no employee of that company rendered any services whatsoever in the operation of hauling rough lumber. Not so in the instant case. The work in the shoe department was not done solely by the five employees of the lessee. Some of such work, a considerable amount of such work — thousands of dollars of such work by reasonable inference — was done by Union Dry Goods Company "directly through its own employees."

The court did not err in overruling the motion for a new trial for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.