James J. Burns, Jr., Pittsburgh, for appellant.
Murray J. & Fred J. Jordan and Edwin B. Goldsmith, all of Pittsburgh, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 386]
The sole question in this workmen's compensation case is whether the claimant was defendant's employe or an independent contractor. The compensation authorities held that he was an employe, the lower court affirmed, and defendant appeals.
Claimant's testimony disclosed that the defendant was engaged in the sale of magazines and books, the actual sales being made by individuals such as the claimant.
In September, 1947, one Giles (described by claimant as defendant's crew manager) requested the claimant, then 19 years of age, 'to go to work under him for the company,' and the claimant began the sale of the publications in question. After he went to work Giles had him sign one of defendant's 'agreements,' telling him that it was an 'employment application.' The sole defense to the claim was this contract, which the claimant had signed before he reached his majority. It describes both him and Giles as independent contractors.
The actual document raises many suspicions. When the claimant signed the contract the defendant had not yet executed it. The agreement recited that it was
[ 170 Pa. Super. Page 387]
'made' at Philadelphia,' where claimant had never been, between the defendant as one party and the claimant and Giles as the other party. No copy of the contract was ever given to the claimant.
The paper provided, inter alia, that neither he nor Giles was in any way an employe, and further that he and Giles were to sell 'as he [they] saw fit free from the domination or control' of defendant. Giles, too, signed the contract, and in it there was no differentiation between the position of Giles and that of the claimant. But the paper also provided that the defendant had the right to reject sales; that the sales had to be at prices acceptable to the company; and that it had the right to fix, from time to time, the profit to the claimant. Giles directed sales and chose 'the stuff he wanted [claimant] to [sell]'; and the defendant provided the transportation and samples and sales materials.
Claimant had no books, magazines or materials of his own; no automobile of his own; and he was taken to the territory in which it was demanded that he work, and indeed the very street was designated. He started to work at Meadville. He then expressed to Giles that he wanted to work Akron, Ohio. Giles told him that he had been advised this could not be done, and that he must go to Oil City or be discharged. To lose no selling time Giles ordered that they leave for Oil City on a Sunday night, when the accident occurred causing serious injuries to the claimant. This was in spite ...