State ex rel. Employment Security Commission v. Monsees

DenNY, J. As we interpret the record before us, there is no controversy between the plaintiff and the defendant as to the amount of contributions due the Employment Security Commission, if it is determined the defendant is liable for contributions under the Employment Security Law. Likewise, if it is determined that Yestal Monsees, John Arville Cross, Clay Garrick, Joe Young, and Mozelle Tysinger were employees of C. R. Monsees within the meaning of the Employment Security Law, then it is conceded that the defendant had in his employ in each of twenty different weeks in the years involved, eight or more individuals. G.S. 96-8 (f) (1). Therefore, the sole question for our determination is whether the above-named individuals were employees of C. R. Monsees within the meaning of the Employment Security Law. G.S. 96-8 (e), in pertinent part, reads as follows: '“Employing unit’ means any individual or type of organization . . . which has, on or subsequent to January 1st, 1936, had in its employ one or more individuals performing services for it within this state . . . Whenever any employing unit contracts with or has under it any contractor or subcontractor for any employment 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 (f) of this section, or section 96-11 (c), the employing unit shall ... be deemed to employ each individual in the employ of each 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: . . .” The defendant knew that his subcontractors were employing individuals to aid them in carrying out their respective contracts with him in order [73] that he might fulfill his contractual obligations to Nall. In fact, according to the record, C. R. Monsees kept the pay rolls for each of the individuals with whom he contracted to perform services for him and reported and paid the Federal old age and survival benefit insurance taxes to the Federal Government on the earnings of Vestal Monsees, Joe Young, Clay Carrick, and on the earnings of those employed to assist them in the performance of their agreements. All the taxes so paid were later deducted from the amounts due the respective individuals under their agreements which, in effect, placed the tax burden upon Vestal Monsees, Joe Young and Clay Carrick. The defendant also advanced wages to the employees of the above men and deducted such advances in his settlement with their employers. In 1946, the Internal Revenue Collector called upon the defendant to pay the Federal unemployment tax whereupon amended social security returns were made accompanied by affidavits to the effect that Vestal Monsees, Joe Young and Clay Carrick were subcontractors and should file separate returns under the terms of the Social Security Act. The amended returns were accepted by the Federal Government. The defendant contends that from and after 1 April, 1943, until the date of the hearing below, he was not a sawmill operator but merely a jobber, and that Vestal Monsees, Joe Young, Clay Carrick, John Arville Cross and Mozelle Tysinger were independent contractors, and that their work was not a part of his usual trade, occupation, profession, or business. This contention cannot be upheld in the light of the defendant’s ■own testimony, which is as follows: “From 1937 up until the present time I have had several contracts with O. M. Wall and Son to fell trees from their property, have them logged and sawed into rough lumber, and delivered to their plant at Thomasville. I had individual contracts from time to time. The cutting and delivering of rough lumber under these contracts was part of my usual business whether I employed folks to process the lumber or whether I made contracts like I have since 1943. I placed the sawmills on the lands on which standing timber was, and on which C. M. Wall owned the timber rights, for the purpose of carrying out my ■contract with the company. I went on these lands from time to time and made the repairs to my sawmills. The property was under my control while I was carrying out this contract. I had my trucks to go out there .and take this rough lumber and haul it from the sawmill on this property to Wall’s plant. ... I did not require my brother, Vestal Monsees, to pay any rent on the sawmill unless he did some custom sawing. I didn’t make any arrangements about renting the sawmill to Vestal Monsees. I just told him to go out there, and that I would furnish the sawmill and would give him so much a thousand.” [74] In determining the employer-employee relationship within the meaning of the Employment Security Law prior to its amendment by Chapter 424, Section 5, subsection (1), of the 1949 Session Laws of North Carolina, now codified as G.S. 96-8 (g) (1), we cannot be governed by the usual definition of what constitutes the master and servant relationship or the status of an independent contractor. The Act itself fixes the status of the employment and includes many individuals who would be excluded under the definition of master and servant, and principal and agent at common law. Unemployment Compensation Com. v. Jefferson Standard Life Insurance Company, 215 N.C. 479, 2 S.E. 2d 584; Unemployment Compensation Com. v. Insurance Co., 219 N.C. 576, 14 S.E. 2d 689; Young v. Bureau of Unemployment Compensation, 63 Ga. App. 130, 10 S.E. 2d 412. The individuals involved herein, according to the record, were subcontractors under C. R. Monsees and engaged in doing work which constituted part of his usual trade or business in felling trees, having them logged and sawed into rough lumber in accordance with the terms of his contract with Wall, and the services performed by these subcontractors were performed on premises under the control of C. R. Monsees, and were services which he had contracted with Wall to perform. He merely farmed out part of the work to Vestal Monsees, Joe Young, Clay Garrick, John Arville Cross, and Mozelle Tysinger, who were not independent contractors but employees of C. R. Monsees within the meaning of the provisions of the Employment Security Law. G.S. 96-8 (e). Moreover, the Commission found the pertinent facts in its hearing below, which facts are supported by competent evidence and are binding upon review. G.S. 96-4 (m); Employment Security Com. v. Kermon, 232 N.C. 342, 60 S.E. 2d 580; Employment Security Com. v. Distributing Company, 230 N.C. 464, 53 S.E. 2d 674; Employment Security Com. v. Roberts, 230 N.C. 262, 52 S.E. 2d 890; Unemployment Compensation Com. v. Harvey Son Co., 227 N.C. 291, 42 S.E. 2d 86; Unemployment Compensation Com. v. Willis, 219 N.C. 709, 15 S.E. 2d 4. Furthermore, the facts found by the Commission support its judgment. Cf. Employment Security Com. v. Tinnin, post, 75, where the relationship was that of consignor and consignee and the contract was merely one for the sale of goods by a method well recognized and widely used in the sale of merchandise. In our opinion, on the record before us, the plaintiff was entitled to an affirmance of the findings and conclusions reached by the Commission. Employment Security Com. v. Kermon, supra; Employment Security Com. v. Distributing Co., supra; Unemployment Compensation Com. v. Harvey & Son Co., supra. The judgment of the court below is Reversed.