(dissenting).
The majority opinion never gets to the three-part test of SDCL 61-1-11 because the decision stops at the first line of the statute and decides that the 3½ cents per gallon commission Hemenway is paid by the Company is not wages within the meaning of SDCL 61-1-1(9). In 1980 that statute read:
Effective January 1, 1947, “wages” means all remuneration paid for services, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash, but excluding remuneration described by §§ 61-1-32 to 61-1-35, inclusive. Gratuities customarily received by an individual in the course of his employment from persons other than his employer, if such gratuities constitute fifty percent or more of the employee’s earnings from such employer shall be treated as wages paid by his employer. The reasonable cash value of remuneration paid in any medium other than cash and the reasonable amount of gratuities shall be estimated and determined in accordance with rules prescribed by the department[.]
In the last paragraph on page 4 of the opinion, the majority refers to the above statute and states: “The term ‘commissions,’ however, modifies the phrase ‘remunerations paid for services’ and, hence, does not ipso facto transform every commission into wages.” I cannot follow the logic of this sentence. The majority opinion cites SDCL 2-14-1 in support of that sentence. SDCL 2-14-1 states: “Words used [in statutes] are to be understood in their ordinary sense except also that words defined or explained in § 2-14-2 are to be understood as thus defined or explained.” Hemenway was paid a commission for services rendered — pumping the Company’s gas and supplying the Company with accurate records of the amount of gas pumped and money taken in payment for the gas pumped. Reading the words of SDCL 61-1-1(9) in their ordinary sense I come to the conclusion that the commissions paid He-menway are automatically wages.
As further support for the statement that commissions are not automatically wages the majority decision cites a Connecticut county court case and a Mississippi Supreme Court case. Neither of those cases is in any way factually similar to the one before us, neither involve the issue of commissions as wages, and neither State has a statute defining wages identical to South Dakota’s.
If the 3½ cent commission is a wage, this court will have to decide if the three-part test of SDCL 61-1-11 is met. The franchise agreement between Hemenway and the Company plainly shows that Hemenway is under considerable control and direction from the Company. See Agreement, Covenants of Operator, for example. Because of this I don’t think the Hemenway/Company relationship would survive SDCL 61-1-11(1).