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McNEEL, INCORPORATED, v. REDWINE, Commissioner, etc.
Affidavit of illegality. Before Judge Manning. Cobb Superior Court. December 1, 1953.
The affidavit of illegality and the contract attached thereto, filed to the tax execution, show that the parties to the employment contract are under the coverage of the Georgia Employment Security Law; therefore the court did not err in sustaining the general demurrer to the affidavit.
The Georgia Department of Revenue issued an execution for the use of Ben T. Huiet, Commissioner of Labor, against McNeel, Incorporated, and levy was made on certain property belonging to the defendant. The plaintiff in fi. fa. contended that the defendant owed the department certain sums under the Georgia Employment Security Law. The defendant filed an affidavit of illegality to the execution, contending that the contract attached to the affidavit showed that the relationship between it and its "dealers" was that of independent contractors, and that therefore the parties did not come under the act. The court sustained a general demurrer to the affidavit of illegality, and the defendant in fi. fa. excepts.
The contract of employment attached to the affidavit is in part as follows: "The company agrees: (1) To furnish complete sales equipment without cost, which is to remain the property of the company. (2) To furnish purchasers and salesmen copies of all orders accepted. Only one copy will be sent to salesmen whose name first appears on top line of order. (3) To furnish special studio designs and/or estimates where required without cost. (4) To send the undersigned a statement of his account at reasonable intervals, or upon request. (5) To render the undersigned and/or his salesmen all possible assistance in making sales. (6) To furnish the undersigned and his salesmen with current price list with full explanation and instructions as to how the price list is to be used. (7) Company agrees to funish all required printed matter including order forms, booklets, pamphlets and other sales promotion literature. (8) To provide exclusive sales rights to the undersigned in the territory assigned. (9) To allow and pay the undersigned commissions as specified and described in current price lists and as described herein under rules and regulations. (10) To prepay freight on all shipments at expense of company. The broker-salesman agrees: (1) To take the best possible care of designs and all sales equipment and to return same to the company upon request or to pay the company $200 on demand, which is hereby agreed as being the mininium value of same. (2) The undersigned agrees to have all orders clearly and completely filled out before sending to company, including division of salesmen's commission as hereinafter described. (3) To carefully preserve all studio designs and return to company upon request. (4) Upon receipt of itemized statement any errors or omissions will be called to the company's attention within six days of date of receipt. (5) To regularly visit all counties in the assigned territory and make required reports. (6) To at all times conform to current company prices. It being agreed that any deviation from these prices will be at the gain or loss of the undersigned and/or his co-salesmen. (7) The undersigned and/or his salesmen agree to take all orders on company order forms and further agrees that all orders will be signed by the purchaser. (8) The undersigned and/or his salesmen agree not to represent any other company or firm in any capacity which manufacturers or sells monuments or mausoleums. (9) That commissions allowed shall be payable as described and specified in current price list and according to rules and regulations described herein. (10) To promptly erect each order as shipped as required under rules--regulations--Foundations and Erections. (11) Finally this agreement may be terminated by either party at any time, and the termination will be effective upon written notice to the last known post office address of either party. . . Spotters--Commissions and fees for sales help rendered by spotters will be paid direct by company under the following conditions: . . . All such commissions paid to spotters will be charged to salesman's account or deducted from salesman's gross commission . . . (5) Under no circumstances will the company be responsible for any such fees or commissions due spotters unless the above conditions are complied with . . . Financing--Reasonable financing by weekly advances against commissions will be allowed under the following conditions: [here appeared the conditions and means by which "full-time representatives" re-
ceive advances]. Foundations and Erections. The company will retain a minimum of 10% for the sale price of each order, to be withheld until shipment is made, at which time such amount will be mailed to the representative if he is to attend to the installation or such anrount will be used by the company, if the company is to make installation. Any installation by the company will be at a minimum charge of 10% of sale price. Such work as is installed by the representative or under his supervision, shall be accomplished in a neat and workmanlike manner, and any complaints resulting therefrom shall be adjusted, as the company deems advisable at the full expense of the representative. If any installation to be made by the salesman, or his representative, is not promptly made, company reserves the right to make the installation and charge full expense to salesman's account. Collection--Complaints. Upon completion of installation, it shall be the responsibility of the representative to promptly attend to collections, and to remit in full all collections promptly to the company. No amounts are to be deducted for any reason. Further, it shall be the responsibility of the representative to attend to and adjust any complaints in a prompt and business-like manner without expense to the company. Any collection not promptly and satisfactorily attended by salesman, company reserves right to charge allowed commissions back to the salesman's account."
It makes no difference whether the relationship between the parties was one of employer-employee or the "dealers" were independent contractors. The test, and the quesiton here for decision, is whether the status between the parties falls within the meaning of employment as defined by the act. Young v. Bureau of Unemployment Comp., 63 Ga. App. 130, 137 (10 S. E. 2d 412). Code (Ann. Supp.) 54-657 (h) defines employment subject to the act as meaning any service performed for wages or under any contract of hire, written or oral, express or implied. Code (Ann. Supp.) 54-657 (n) defines "wages" as meaning "all remunerations for personal services, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash." We think the "broker salesmen," or "dealers," performed "services" for the defendant for "wages" within the meaning of the act, and that therefore they come under the act unless they are exempt therefrom by virtue of Code (Ann. Supp.) 54-657 (h) (6), which provides: "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." The contract and the affidavit of illegality do not show that they are so exempt. The company funishes the "dealers" with sales equipment and printed sales matter, pays them commissions on sales made according to a price list made up by the company, makes advances against their commissions, directs, even if indirectly, the erection of foundations and monuments, can discharge them at its pleasure, requires them to conform to current company price lists, regulates collections, and requires them to "regularly visit all counties in the assigned territory and make required reports," etc. See Babb & Nolan v. Huiet, 67 Ga. App. 861 (21 S. E. 2d 663); Redwine v. Wilkes, 83 Ga. App. 645 (64 S. E. 2d 101); Young v. Bureau of Unemployment Comp., supra.
It does not matter that the Federal Employment Security Agency has construed the contract as not bringing the parties under the Federal law. Our Georgia act describes its own coverage, and the test of coverage or non-coverage is made under the Georgia act only.
The court did not err in sustaining the general demurrer to the affidavit of illegality.
Otis L. Hatchcock, contra.
Alston, Sibley, Miller, Spann & Shackelford, for plaintiff in error.
Saturday May 23 03:44 EDT

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