1 Reported in 157 P.2d 954. This proceeding was instituted by the department of unemployment compensation and placement against Henry Broderick, Inc., on April 13, 1943, by the service on that date of an order and notice of assessment demanding payment from Henry Broderick, Inc., of the sum of $4,129.07, as delinquent contributions due the unemployment compensation fund for the period of March 16, 1937, to and including March 31, 1943.
As stated in the brief of the commissioner of unemployment compensation and placement, such contributions were assessed on the contention of the commissioner that certain real estate brokers were performing services which constituted "employment" for Henry Broderick, Inc., and that the corporation was liable for contributions based on commissions earned by such brokers.
Henry Broderick, Inc., hereinafter referred to as appellant, filed a petition asking for a hearing on such assessment, stating and contending that such brokers are not in "employment" of appellant, but are co-principals with appellant in joint adventures in the rental, lease, or sale of real estate. The matter came on for hearing before the appeal tribunal, which thereafter made and entered its findings of fact, conclusions of law, and decision. The appeal tribunal concluded that the brokers here involved are performing services for appellant for wages as that term is defined in Rem. Rev. Stat. (Sup.), § 9998-119 [P.C. § 6233-317] (m), (now Rem. Supp. 1943, § 9998-119m), and must be considered in employment subject to the act unless it is shown that they are exempt because of the exceptions contained *Page 762 in Rem. Rev. Stat. (Sup.), § 9998-119 (g) (5), (now Rem. Supp. 1943, § 9998-119g (5)).
The tribunal further found that appellant had failed to establish that the services of the brokers come within any of the exemptions contained in the subsection last above referred to; that their services constitute "employment" under the act, and "that contributions are properly assessable on the remuneration payable to them for the period in question."
Appellant thereafter filed its petition for review by the commissioner, alleging that the appeal tribunal's findings of fact are not complete, and that its conclusions of law are not supported by the evidence and are contrary to law. Appellant's argument in support of the petition is attached to the petition and by reference made a part thereof.
On October 13, 1943, the commissioner made and entered his decision, wherein he adopted the findings of fact and conclusions of law of the appeal tribunal and affirmed its decision. An appeal was taken to the superior court for King county, which court, after a review of the record and after hearing argument, entered judgment affirming the decision of the commissioner. From the judgment entered on May 6, 1944, Henry Broderick, Inc., has taken an appeal to this court.
It is contended that the court erred in sustaining the decision of the commissioner that the service constituted "employment" within the meaning of the act; in determining that the commissioner correctly construed the law and that his determination was neither arbitrary nor capricious; in determining that appellant failed to meet the requirements of Rem. Supp. 1943, § 9998-119g (5), (i) and (ii); and in rendering judgment for respondent and against appellant in the sum of $4,129.09, interest and costs, or in any sum.
The evidence in this case is not disputed, and all comes from witnesses called, and exhibits introduced, by appellant.
Henry Broderick has lived in Seattle forty-two years. He began business for himself in 1908, and appellant was incorporated by him in 1911. Appellant is a licensed real estate broker, and is engaged in many activities in connection with *Page 763 the management, rental, leasing, and sale of real estate. Appellant also has an insurance department. It has been continuously engaged in the real estate business in Seattle for about thirty-five years.
Appellant has in its employ six real estate salesmen, who are directly under the supervision of Mr. Baird, vice-president. Mr. Baird's specific duties pertain to supervising the property management department. A part of the duties of the salesmen consists of looking after the property which appellant manages, of renting space, collecting rents, and supervising maintenance work. These salesmen each have a salesman's license procured from the state. Appellant pays for the procuring of such licenses, and pays the premium on the bond required by the state. Appellant holds sales meetings every morning, and the salesmen are required to attend. They report on their activities for the previous day and report on assignments which they have been given. The salesmen are under the direct supervision and control of appellant, the same as a bookkeeper or any other employee. They devote about twenty-five per cent of their time to sales activities and seventy-five per cent to property management. In so far as their connection with sales is concerned, if they are assigned to a prospect they are required to call upon him and report back to appellant. They pay no part of the sales expense in connection with any sale they may make or attempt to make.
The salesmen are paid a stipulated salary semimonthly, and in addition, if they have been responsible for a sale from which a commission comes to appellant, they receive a bonus of forty per cent of such commission, which commission is paid at the same time the salary is paid. Any commission coming to appellant by reason of the activities of the salesmen, goes directly into the profit and loss account of appellant. The salesmen receive a salary whether they make a sale or not. It is admitted that these salesmen are in "employment" under the act, and the evidence above set out was introduced for the purpose of contrasting the relation between appellant and its salesmen, and its relation with the real estate brokers involved in this proceeding. *Page 764
It appears from the testimony of Henry Broderick that, from the time he began operations as an individual, and since the organization of appellant, the same association has been maintained with other brokers as has been maintained with the brokers here involved.
In 1938, appellant had a written contract prepared (App. Ex. 1), and thereafter any broker associated with appellant was required to sign this contract. This contract, according to Mr. Enge, treasurer of appellant, embodied exactly the same relationship that had existed between appellant and associate brokers, and was not intended to establish a different relationship between appellant and associate brokers, but to clarify the association to third parties who might for some reason be interested in what the association between appellant and these brokers was.
The contract in part provides that the parties respectively warrant that they are licensed and authorized to act as real estate brokers in the state of Washington, and each agrees that during the term thereof he will keep his license as a broker in full force and effect at his own expense, and will pay all fees and taxes due the state, county, or municipality arising out of his activities as broker, and neither shall be liable for the fees or taxes of the other. Failure on the part of either party to keep in effect his license as a broker, shall automatically terminate the agreement.
It is agreed that first party (appellant) is duly qualified to and does procure the listing of real estate for sale, lease, or rental, and prospective purchasers, lessees, and renters therefor, and has and enjoys the good will of, and a reputation of fair dealing with, the public. First party also has and maintains an office properly equipped with furnishings and staff, suitable to serving the public as a real estate broker, and the parties deem it to be to their mutual advantage to form the association agreed to. First party agrees to furnish second party a desk, with use of a telephone, at first party's offices now located at Second and Cherry street, and to furnish switchboard service, including taking of calls for second party pertaining to the services referred to. First party will also furnish second party with *Page 765 such reasonable and necessary stenographic service as may be required for carrying out second party's portion of the agreement. It is understood that first party advertises extensively, and that second party will, at first party's discretion, be mentioned in such advertising.
First party agrees to make available to second party all current listings of the office, except such as first party may find expedient to place exclusively in the temporary possession of some other broker, and first party agrees to assist second party in his work by advice and full co-operation in every way practicable. First party has within its organization experts in various fields pertaining to real estate, and second party will have the benefit of the advice and co-operation of such experts in connection with deals being handled by second party.
Second party agrees to work diligently, and to exert his best efforts to sell, lease, or rent any and all real estate listed with first party and available to second party under the terms of the preceding paragraph, to solicit additional listings and customers in the name of first party, and otherwise to promote the business of serving the public in real estate transactions, to the end that each of the parties may derive the greatest profit possible. The usual and customary commission shall be charged for any service performed under the contract, unless first party shall advise second party of any special contract relating to any particular transaction which he undertakes to handle.
When second party shall perform any service whereby a commission is earned, such commission shall, when collected, be divided between first party and second party. First party shall receive fifty per cent and second party fifty per cent of the commission realized by them on deals in which second party has participated, division of the commission to be made on that basis as the commission is received. Such division shall apply also to fees on appraisals. In the event of special arrangements with any client, or in the event property of first party is listed, a special rate of commission may apply, such rate to be agreed upon by first party and second party. In no case shall first party be liable to second *Page 766 party for any commission unless the same shall have been collected from the party for whom the service was performed.
First party shall not be liable to second party for any expense incurred by the latter, or for any of the latter's acts or omissions nor shall second party be liable to first party for office help or expense in so far as first party has agreed to provide the same, and second party shall have no authority to bind first party by any promise or representation, unless specifically authorized in a particular transaction; but expenses for attorney's fees, costs, revenue stamps, abstracts, and the like, which must by reason of some necessity be paid from the commission, or which are incurred in the collection of, or the attempt to collect, the commission, shall be paid by the parties in the same proportion as provided for in the division of commissions. First party shall be under no obligation to second party to make any advances either for expenses or commissions. Second party agrees to furnish transportation at his expense for prospects which second party contacts under this agreement, and to pay at his own expense entertainment costs, club dues, andother expenses incident to the conduct of his services as a realestate broker. Second party shall have entire discretion as to the handlingof "leads" and prospects assigned to him, as to the conduct ofsecond party's services as broker, and as to the means ofsecuring listings, handling prospects, and consummating deals,and shall be free from control of first party as to the mannerand method of conducting second party's services as real estate broker, it being the intent that second party is an independent contractor, and not a servant, employee, joint adventurer, or partner of first party.
Let us now look at the evidence to see what the actual operations of appellant and these brokers were under the contract, for in the case of McDermott v. State, 196 Wash. 261,82 P.2d 568, we held that certain barbers and other operatives there involved were in fact, under the evidence, in "employment" of McDermott, regardless of a so-called lease agreement. *Page 767
Melville Wilson, one of the brokers associated with appellant, has lived in Seattle since 1905, and has been in the real estate business since 1911. He has a real estate broker's license for which he made application and for which he paid. He furnished the bond required, and paid the premium thereon. He testified:
"Q. Why did you not apply for a salesman's license? A. Because I am not a salesman, I am an individual broker, I work alone. Q. How long have you been associated as an independent broker with the firm of Henry Broderick, Inc.? A. I believe it was December, 1938. Q. '38. And as such a broker, who pays the expenses that you incur in your sales activities? A. With the exception of the office, I pay everything myself. Q. And what do you mean by `office?' A. I have a desk and telephone. Q. Those are the office facilities that are referred to in the contract? A. Yes. Q. All other expenses that you are put to in conducting your business and in making your sales . . . A. They are mine. Q. In addition to the bond premium, and the license fee, who pays any taxes that you are obligated to the state? A. I do. Q. Now, do you have access to all listings in the office of Henry Broderick, Inc.? A. Yes. Q. Did you ever attend these sales meetings that were testified to by Mr. O'Brien? A. Whenever it is convenient, whenever I can do it. Q. Are you under any compulsion to do that? A. Oh, no. . . .
"Q. Do you recognize any control over you by Henry Broderick, Inc. or any one else? A. No. Q. Do you have any regular time or hours? A. I couldn't have any regular hours, I work whenever it is convenient. Q. Do you have a car of your own? A. Yes, sir. Q. And you pay for your oil and gas? A. Oh, yes. Q. And do you have an insurance policy? A. Yes. Q. And who is the insured? A. I am. Q. You heard the testimony of Mr. O'Brien with reference to the brokers or some of them desiring to specialize in certain areas? A. Yes. Q. Do you specialize in any area? A. Not in any area, I specialize in commercial property. . . .
"Q. And is that at your wish or at the dictation of Henry Broderick, Inc.? A. They have nothing to do with it, that is what I want to do. Q. Does that fact, however, militate against your making a sale of residential property if you wanted to? A. No, I can sell anything I want. Q. Are you required to make any specific calls during the day by Henry *Page 768 Broderick, Inc.? A. Oh, no. Q. Are you under instructions from the firm as to your activities in any respect? A. No, I am an individual broker, I work alone. Q. Are you required to give your entire time to the business of selling real estate? A. No, I am in another business. Q. What other business? A. Food broker, canned foods. Q. And do you give such portion of your time as you see fit to that? A. Yes. Q. So as far as you know, may there not be other brokers similarly associated with Henry Broderick, Inc. that devote some of their time to other activities? A. There is one that devotes quite a bit of his time to other things. Q. Now, if you don't make a sale for a period of two months, do you receive any compensation of any kind in any form? A. Not on real estate business. . . .
"Q. Now, are the earnest money receipts necessarily signed in the office of Henry Broderick, Inc.? A. I don't remember having had one signed in the office. Q. Where are they often signed? A. In the owner's office or business office or home or place of business. Q. How about closing papers? A. They may be closed in a bank or title company's office or the lawyer's office or the office of Henry Broderick, Inc. Q. Now, in your practice as a broker and your relationship with Henry Broderick, Inc. tell us whether Henry Broderick, Inc. have assumed any obligations other than the desk and office facilities and telephone? A. No. Q. And have you assumed any obligations to Henry Broderick, Inc. other than to share the commission? A. That is all. Q. Who has the uncontrolled discretion as to the handling of leads and handling of prospects of property that you are trying to sell? A. Well, if I am going to do anything, I decide it myself, no one has anything to do about that. Q. And the mode of approaching the buyer, the prospective buyer? A. That is up to me."
Mr. Wilson prepares, or has prepared, advertisements when he desires, and appellant pays for the same. Mr. Wilson pays a business tax. Checks for earnest money are usually made out to appellant. The witness has sold property through John Davis Co. while associated with appellant, and the commission was divided between appellant and Mr. Wilson. The broker receives his share of the commission when a deal is closed.
Mr. Wilson further testified: *Page 769
"Q. By my question, I mean the commissions don't pile up until the 15th and the 1st? A. No, it is my money, half of it is mine the minute the deal is turned."
Either party, upon notice given to the other, may terminate the association created by the contract.
The testimony continued:
"Q. You spoke in answer to Mr. Foley's question, of instances where another real estate firm has been associated with you and Henry Broderick, Inc., in the sale of a piece of real estate? A. Yes. Q. Is that relationship with that other real estate firm, for instance, John Davis and Company or West Wheeler in any respect different than the association with Henry Broderick, Inc., as far as you know? A. No, they control the piece of property and I am a broker trying to sell it."
In so far as this record shows, the services of all the brokers are performed in the same way and under the same conditions as those of Mr. Wilson.
Let us now look to the testimony of Mr. Enge, treasurer of appellant, and see what some of the other practices are between appellant and these brokers:
"Q. If a broker becomes an employee, a salesman, is he permitted to continue with his broker license? A. The law prohibits him from so doing and the firm in actual practice does not allow it either, we won't hire as a salesman anyone with a broker's license. We have a man in our brokerage department, a man with a broker's license, who desired to become associated with us as an employee. He surrendered his broker's license and applied for a salesman's license. . . .
"Q. Now, turning again to the bookkeeping, is there any distinction in the manner in which commissions are handled and paid out where a commission emminates from the efforts of a broker as contrasted with a commission that is brought in as a result of an activity of a salesman? A. Yes, sir, there is a decided difference. Commissions with respect to a deal negotiated by a real estate broker comes out of an escrow or trust account on the books, out of which are paid other items than the commission such as title insurance, prorating of taxes, and various items that need to be paid out at the time of a closing of a real estate deal. In these accounts are also credited the earnest money payments and the balance of the purchase price, and out of these accounts *Page 770 are paid the balance due to the seller. When the deal is consummated there remains in this escrow or trust account, theoretically or usually the amount of the commissions, the total amount of the commission and that is paid in two halves to Henry Broderick, Inc. and to the brokers at the time the deal was closed. Q. Starting back at the beginning again, how are these accounts that you have termed as trust or escrow accounts headed or entitled? A. They bear the title of the seller and the purchaser, or the lesser and the lessee as the case may be. Q. And what usually constitutes the first entry in such an account? A. Earnest money deposits or deposit. Q. And as the money is paid on the purchase price, does that go into this escrow or trust account? A. Yes, sir. Q. When does any portion of that commission first enter the profit and loss account of Henry Broderick, Inc.? A. When the deal is closed and the commission is paid. Q. And is that simultaneously with the receipt of his share by the broker? A. Yes, sir. Q. And what is that broker's share usually? A. 50 per cent."
Practically all of the labor necessarily performed in consulting prospects, showing the property, etc., is performed in the field. No part of the commission due the broker ever goes into the profit and loss account of Henry Broderick.
[1] The principal question presented on this appeal is whether or not these real estate brokers are in "employment" of appellant under the act. In considering this question, we have in mind our decisions holding that the administrative determination of the facts in such a proceeding as this is conclusive on the court, unless such determination is wholly without evidential support, or is wholly dependent upon a question of law, or is clearly arbitrary or capricious. Unemployment CompensationDepartment v. Hunt, 17 Wash. 2d 228, 135 P.2d 89, and cases therein cited.
[2] We also have in mind that in State v. Goessman, 13 Wash. 2d 598, 126 P.2d 201, after referring to WashingtonRecorder Pub. Co. v. Ernst, 199 Wash. 176, 91 P.2d 718, 124 A.L.R. 667, we stated:
"The cases of In re Farwest Taxi Service, Inc., 9 Wash. 2d 134, 114 P.2d 164; Mulhausen v. Bates, 9 Wash. 2d 264,114 P.2d 995; Virginia Mason Hospital Ass'n v. Larson, 9 Wash. 2d 284, 114 P.2d 976; and In re Foy, 10 Wash. 2d 317,116 P.2d 545, as stated in the recent case of Sound *Page 771 Cities Gas Oil Co. v. Ryan, ante p. 457, 125 P.2d 246, have committed
"`. . . this court to the view that our unemployment compensation act, which is similar to those of the majority of the states where this form of social security obtains, does not confine taxable employment to the relation of master and servant.'
"In the cases just cited, we adhered to the following rule announced in McDermott v. State, 196 Wash. 261, 82 P.2d 568:
"`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.'"
See, also, Unemployment Compensation Department v. Hunt,17 Wash. 2d 228, 236, 135 P.2d 89.
In view of the litigation which has followed the McDermott case, supra, and the contentions that have been made in each case as to the relationship of the parties involved, and particularly because of what is claimed we said in WashingtonRecorder Pub. Co. v. Ernst, supra, it would seem that there is still doubt in the minds of some members of the bar as to whether or not the rules applicable to the common-law relation of master and servant, should be applied in determining whether or not one is in "employment" of another under the unemployment compensation act.
In Mulhausen v. Bates, 9 Wash. 2d 264, 275, 114 P.2d 995, we distinguished the Recorder case, supra, and apparently this distinction has been accepted in the cases subsequently decided, and as a result the decision in the Recorder case has not been considered as antagonistic to the rule announced in theMcDermott case, supra.
The courts generally and this court have gone a long way in upholding the contentions of those whose duty it was to administer unemployment compensation acts, but there must be some limit to the meaning to be given the word "employment" under the act, and the relationship under which one can be considered in "employment" of another under the act.
Let us now look to the particular sections of our unemployment *Page 772 compensation act with which we are here concerned. The original act will be found in Laws of 1937, chapter 162, p. 574.
Laws of 1937, chapter 162, § 19 (g) (1), as amended (now Rem. Supp. 1943, § 9998-119g (1)), provides:
"`Employment,' subject to the other provisions in this sub-section, means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied."
Laws of 1937, chapter 162, p. 611, § 19 (g) (5), as amended (now Rem. Supp. 1943, § 9998-119g (5)), provides:
"Services performed by an individual for remuneration shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the Commissioner that:
"(i) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and
"(ii) Such service is either outside the usual course of business for which such service is performed, or that such service is performed outside of all the places of business of the enterprises for which such service is performed; and
"(iii) Such individual is customarily engaged in an independently established trade, occupation, profession or business, of the same nature as that involved in the contract of service."
The above-mentioned parts of § 19 (g) of the original act of 1937 have not been changed, except that the word "director" has been changed to "commissioner."
Laws of 1937, chapter 162, p. 614, § 19 (m), provided:
"`Wages' means remuneration payable by employers for employment. `Remuneration' means all compensation payable for personal services, including commissions and bonuses and the cash value of all compensation payable in any medium other than cash, The reasonable cash value of compensation payable in any medium other than cash, and the reasonable amount of gratuities, shall be estimated and determined in accordance with rules prescribed by the director."
Laws of 1941, chapter 253, p. 915, § 14, provides:
"That section of chapter 214 of the Laws of 1939 which passed both houses of the Legislature as section 16, and *Page 773 which appears in chapter 214 of the Laws of 1939 as an unnumbered section due to the number thereof having been included in a veto of a portion thereof by the Governor, which section is designated as section 9998-119 (a) of Remington's Revised Statutes (supp.), is hereby amended to read as follows: . . .
"Section 19 (m) `Wages' means the first three thousand dollars of remuneration payable by one employer to an individual worker for employment during one calendar year. . . ."
Then, as a part of the same subsection, there is a definition of remuneration which is the same as that contained in the original § 19 (m), Laws of 1937, chapter 162.
The present section containing the definition of "wages" and "remuneration" will be found in Rem. Supp. 1943, § 9998-119m. The question of whether or not a person or persons were in "employment" under the act has been before us in the following cases: McDermott v. State, 196 Wash. 261, 82 P.2d 568;Washington Recorder Pub. Co. v. Ernst, 199 Wash. 176,91 P.2d 718; Mulhausen v. Bates, 9 Wash. 2d 264, 114 P.2d 995;In re Farwest Taxi Service, Inc., 9 Wash. 2d 134,114 P.2d 164; In re Foy, 10 Wash. 2d 317, 116 P.2d 545; Sound CitiesGas Oil Co. v. Ryan, 13 Wash. 2d 457, 125 P.2d 246; Statev. Goessman, 13 Wash. 2d 598, 126 P.2d 201; In re HillmanInv. Co., 15 Wash. 2d 452, 131 P.2d 160; and UnemploymentCompensation Department v. Hunt, 17 Wash. 2d 228,135 P.2d 89.
We are not going to attempt to discuss the basis of the decision in each of the above-mentioned cases other than to say that, with the exception of the Recorder case, supra, we recognized the relationship of employer and employee to exist, and that the wages or remuneration paid or to be paid by the employer to the employee, whether in the form of commissions or otherwise, was in fact paid or to be paid by the employer from money belonging to the employer. In most of the cited cases, it was contended that the so-called employee was an independent contractor and not an employee. Thus in Mulhausen v. Bates,supra, while the representative Farmer received a commission for his services, which commission he deducted from the purchase price of *Page 774 the oleomargarine before remitting to Mulhausen at Portland, we held that, under the method Mulhausen employed in doing business, he was in fact the vendor to the ultimate consumer (the purchaser). This being true, the money paid or retained by Farmer as commission was Mulhausen's money, and such commission constituted wages paid by Mulhausen to Farmer for personal services rendered.
None of the cited cases presents a factual situation similar to the facts in the instant case.
[3] It may be that we have not been as definite as we might have been in setting out the steps to be followed in determining whether or not one was in "employment" under the act. In order to clear up any possible misunderstanding that may now exist, we now state, after a consideration of the statute, our own cases, and other authority, that in making the initial determination of whether or not one is in employment under the act, the first question to be determined is whether, under the facts, such one performed personal services for another for wages, or remuneration, or under a contract of hire. Such a contract of hire contemplates a relationship whereby the employee furnishes personal services to his employer for wages or remuneration to be paid by such employer. If this question be answered in the affirmative, then under the act such one is in employment. If this question be answered in the negative, such one is not in employment under the act. If the question be answered in the negative, then Rem. Supp. 1943, § 9998-119g (5), has no application and is not to be considered. If the question is answered in the affirmative, then such person is in employment under the act unless excluded from its operation by reason of having met the tests prescribed by § 9998-119g (5).
We stated in In re Hillman Inv. Co., 15 Wash. 2d 452,131 P.2d 160:
"Since the claimants performed services for remuneration, they were employees of appellant within the meaning of the act,unless it appears that they were exempt under the exceptionscontained in Rem. Rev. Stat. (Sup.), § 9998-119 [P.C. §6233-317] (g) (5), which provides:" (Italics ours.) *Page 775
This case was decided November 24, 1942. It distinguishes theRecorder case, supra, and refers to Sound Cities Gas OilCo. v. Ryan, supra, and Mulhausen v. Bates, supra.
As applied to the instant case, the first question to be considered would be whether or not, under the facts, these brokers performed personal services for appellant for wages, or remuneration, or under a contract of hire. If the question be answered in the affirmative, then under Rem. Supp. 1943, § 9998-119g (1), such brokers would be in "employment" under the act unless excluded by reason of having met the tests prescribed by Rem. Supp. 1943, § 9998-119g (5). If the question be answered in the negative, then these brokers would not be in employment under the act, and Rem. Supp. 1943, § 9998-119g(5) would have no application and would not be considered, for subsection (5) is an exception provision, applying and applicable only after it has been determined that one is in employment under the act.
The above interpretation has been placed upon a statute almost identical with our Rem. Supp. 1943, § 9998-119g, by the supreme court of Utah in Singer Sewing Mach. Co. v. IndustrialCommission, etc., 104 Utah 175, 134 P.2d 479, after a consideration of all of the cases theretofore decided by the court touching the question here involved. See, also, SingerSewing Mach. Co. v. Industrial Commission, 104 Utah 196,141 P.2d 694, which was a rehearing of the original case in 104 Utah 175. We are of the opinion such an interpretation is sound, and we are further of the opinion it is not in fact contrary to our decisions.
We have read and considered the case of Creameries of Americav. Industrial Commission, 98 Utah 571, 102 P.2d 300, quoted from at length in the brief of respondent, which case was considered in the Singer Sewing Mach. Co. case, supra. We find nothing in the Creameries of America case in regard to the meaning of the terms "service" and "employment" substantially different from the meaning given to those words by our own decisions, and nothing which convinces us that the conclusion reached upon the facts presented in this case and the law applicable thereto is contrary *Page 776 to the meaning of the term "employment" as used in our statutes.
Respondent has also cited cases from other jurisdictions, among them Rahoutis v. Unemployment Compensation Commission,171 Ore. 93, 136 P.2d 426; Singer Sewing Mach. Co. v. StateUnemployment Compensation Commission, 167 Ore. 142,103 P.2d 708, 116 P.2d 744, 138 A.L.R. 1398. The cited cases are in our opinion factually different from the instant case and not controlling herein.
[4] Counsel for respondent contended in his oral argument that, when one has performed services which benefit another, then the person performing such service is in employment under the act, unless the employer has met the three tests contained in Rem. Supp. 1943, § 9998-119g (5). With this contention we cannot agree. It is undoubtedly true that, in the instant case, appellant received some benefit from the services performed by these brokers, but the receipt of benefits is not alone the test of whether or not one is in the employment of another under the act. Before it could be determined that these brokers were in "employment" of appellant under the act, it must appear from the evidence, or be reasonably inferable therefrom, that the brokers rendered personal services to appellant for wages, or remuneration, or under a contract of hire.
[5] In the instant case, an association was formed between appellant and these brokers for the mutual benefit of both. What term the parties may have applied to the relationship is not binding upon us. Appellant contributed to such enterprise certain office facilities, and the brokers contributed their services. Each party, for his contribution to the enterprise, was to receive half of the commission coming in from the sale of real estate as the result of their joint efforts. The half of the commission to which the broker was entitled upon completion of the deal, never was intended to and never did become the property of the appellant. It was the property of the broker from the time it was earned, and was so considered by both parties. Appellant never agreed to pay and never did pay the brokers any wages or remuneration as those terms are defined in the statute, and *Page 777 was not in fact an employer of these brokers under the act, nor was the contract here involved a contract of hire.
We are clearly of the opinion that the evidence in this case wholly fails to show that these brokers were in the "employment" of appellant.
In conclusion, may we call attention to the real estate broker's act of 1941, and particularly to Rem. Supp. 1941, § 8340-25 (1):
"A `real estate broker' is a person whose business policies and acts are free from the direction, control or management of another person, who for a compensation or promise thereof, or with intent to collect or receive a compensation or promise thereof, performs one or more acts of selling or offering for sale, buying or offering to buy, negotiating or offering to negotiate, either directly or indirectly, the auction, purchase, sale, exchange, lease or rental of real estate or interest therein for another person, or who shall advertise or hold himself out to the public by any oral or printed solicitation or representation that he is so engaged, or who takes any part in or directs or assists in the procuring of prospects or in the negotiation or closing of any transaction, which does, or is calculated to result in any of the acts above set forth, and hereinafter referred to as a broker."
It is evident from the above definition that the legislature considered a real estate broker as free from control of another in his operations.
We also desire to call attention to the fact that Rem. Supp. 1943, § 9998-119g (xiv) (Laws of 1943, chapter 65, p. 119), provides:
"The word `employment' as used herein shall not include services performed by a real estate broker, real estate salesman, or real estate agent to the extent that he is compensated by commission."
We do not base this opinion in any degree upon either of the statutes last above set out. However, it might be argued that they do indicate to some extent that the legislature never intended that a real estate broker in this state who performed services for a commission under circumstances such as appear in this case, was intended to be considered as in "employment" under the statute. *Page 778
For the reasons herein assigned, we are of the opinion the trial court erred in holding that these brokers performed personal services for appellant for wages or remuneration, or under contract of hire; in holding that they were in "employment" of appellant; and in holding that appellant was liable for the contributions sought to be collected herein.
The judgment of the trial court is reversed, with instructions to enter judgment dismissing this proceeding.
BEALS, C.J., STEINERT, ROBINSON, and SIMPSON, JJ., concur.