I disagree with the conclusion that Sexton is an independent contractor and that the four salesmen are his personal employees. He is a combined general manager and sales manager, working entirely within the Beaverdale organization, doing both jobs in the corporation's office. Beaverdale pays all expenses, telephone, stationery, advertising, and office clerk. It is held that he is an employee as general manager, but an independent contractor as sales manager. Yet in the statement of facts contained in the majority opinion there are striking similarities, and no distinguishing dissimilarities. As general manager "he employs and discharges the employees. He does not receive a stated salary for his services, being paid a commission based upon the volume of sales." As sales manager he "hires and discharges the salesmen . . . . He does not receive a stated salary but is paid a commission based upon the volume of sales. Out of this commission, he pays the salesmen." "The corporation agrees to provide and maintain at its own expense a suitable office equipped with telephone service, advertising literature, etc. and employ `in said office an office clerk who shall keep the books of the corporation, receive incoming money and render statements of all sales and collections thereon to said Sexton' and to pay `as compensation for Sexton's services' a commission based upon the selling price." The moving sentences leading to what I think is an erroneous conclusion are "the plaintiff has exercised no supervision over Sexton in his capacity as sales manager or over the salesmen employed by him, and his compensation as sales manager is separate from that paid him as general manager. In view of *Page 185 the facts found, the salesmen were clearly employees of Sexton." We have repeatedly held that "it is not the fact of actual interference and control, but the right to interfere, which makes the difference between an independent contractor and [an employee]." Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 525,28 A. 32. Beaverdale had every right to interfere. It had the right to cause the discharge of salesmen if it thought them undesirable or inefficient. Sexton could hire only persons of good moral character and they must perform their duties honestly and efficiently, else the corporation had the right to bring about their discharge. Although clothed in indirect language, the contract in effect gave Beaverdale the actual control, the right to hire and fire. That they did it through Sexton, their sales manager, is of no moment.
There is a second consideration. The opinion states that "ordinarily, the determination of the relationship of master and servant is a question of fact . . . . It is a conclusion of fact and if unsupported by the subordinate facts found it is erroneous as a matter of law." I think great weight should be accorded the finding of the fact of employment by the trial court, especially, as here, where the facts found point directly to the conclusion reached.
A third consideration is that we are here construing the relationship of employer and employee as it affects social legislation. The humanitarian objectives of the Unemployment Compensation Act are vital considerations, and the act should be liberally construed to effect its purposes.
I agree with the conclusion reached by the trial court and the majority opinion as to the question of procedure, and conclude that the trial court did not err in any respect. *Page 186