State Ex Rel. Employment Security Commission v. Champion Distributing Co.

Sbawell, J. Opposing counsel have stipulated that if the salesmen engaged in distributing the merchandise of the defendant in assigned territory should be classed as employees within the meaning of the statute, the Distributing Company, in that event, having as many as eight employees in its service, would be liable to the contribution; otherwise not. To determine the character or status of the field salesmen in that respect ■ — whether employees or independent contractors, or consignees of the goods they sell, we can not any longer resort wholly to ordinary terms, *469 often themselves wanting in precision, and leaving the criteria of employment too nicely balanced. The cited sections of the Employment Security Act, intended to give a clearer legal concept of the incidence of tbe tax, constitute the dictionary of tbe law, wbicb must be observed. The distinctions and classifications, when not capricious and unreasonable, are within the legislative discretion. "We do not understand that the power of the Legislature to make categories by which the statute applies its analytical definitions to employment is questioned. That power has been upheld and the formula here applied has been approved in Unemployment Compensation, Commission v. Jefferson Standard Life Insurance Co., 215 N.C. 479, 2 S.E. 2d 584, and again in Unemployment Compensation Comm. v. Insurance Co., 219 N.C. 576, 14 S.E. 2d 689, and it is made plain that the statute, in its definitions, does not strictly adhere to the implication of the master-servant relation — although in the instant case that relationship might consistently be inferred. Accepting the statute as it stands, the defendant contends that the evidence does not warrant the findings of fact which bring it under the law. Here we may be reminded that on this review we are, by the statute, bound by the findings of fact when there is any competent evidence or reasonable inference from such evidence to support them, G.S. 96-4 (m). Conclusions of law based upon them may, of course, involve a matter of interpretation. A comparison of the findings with the evidence before the Commission convinces us that in all material aspects the findings are supported by the evidence, in which respect only are they subject to review. Eeferring to the approach to a classification of these salesmen under the cited provisions of the law, we have no doubt that under the findings of fact, and the supporting evidence, they are properly declared to be employees, effecting liability of the defendant, under the provisions of this section. The burden is, by the statute, (consonant with the general rule), put on the defendant to show to the satisfaction of the Commission that those performing this service come within the exceptions provided in subsections A, B, C. The Commission held that on the facts the defendant did not .bring itself within the exceptions because, among other things, the salesmen were not free from direction or control of the defendant in the performance of the contract for service; that the service was not outside the usual course of business carried on by defendant, and, indeed, not performed wholly outside the place of business of the enterprise carried on by it, since the goods were loaded on the premises, unsold portions returned there, and check up and payment of remuneration made there. *470 On the question of control it is pointed out that the salesmen were not permitted to sell except for cash; not permitted to sell any competitor’s line of merchandise; were assigned certain designated territory in which to work; gave bond to account for merchandise handled by them. It is also pointed out that these salesmen have no established business independent from the relationship between them and defendant, and paid no license or sales taxes, only peddling or selling the wares of defendant in the territory assigned by him, under the restrictions mentioned — for a remuneration, of course, but in furtherance of defendant’s enterprise rather than their own. They were reported as employees in Federal returns and taxes deducted from the pay roll, and withheld by the defendant as required with respect to employees. We think the view taken By the Commission is inescapable on the facts presented; and so holding, the case needs no further elaboration, arguendo. What is said in the cited cases does not need repetition. We find no error in the record. The judgment of the Superior Court is Affirmed.