305 Mass. 108 | Mass. | 1940
These three complaints against the same defendant were tried together in the Superior Court, upon an agreed statement of facts, before a judge sitting without a jury. The defendant was found guilty in each case. The cases are reported to this court for the determination of the questions presented by the complaints and agreed facts.
The defendant is charged with three violations of G. L. (Ter. Ed.) c. 149, § 56, as amended by St. 1935, c. 200 (since
The defendant is a Massachusetts corporation engaged in the cleansing and dyeing business. It maintains a factory in Boston and retail stores in several places in the Commonwealth. In April, 1938, one Angeline Michaud, in response to a newspaper advertisement, went to the establishment of the defendant and talked with Richard Weinfield, the treasurer of the defendant. He inquired as to her experience “in the line of work” and told her he “would let her know” in a few days. Shortly thereafter Weinfield telephoned Michaud and she reported to him. He told her that in order to work she would have to “sign a lease.”
The lease that Michaud executed with the defendant described her as lessee and the defendant as lessor. It provided for the lease of one of the defendant’s stores in Quincy for one year. The rent was fixed as “all the income from said premises received by the Lessee ... by way of receipts from the retail cleaning and repairing of garments, shoes, laundry and furnishings, except the sum of 12 dollars per week.” The lessee was to use her best endeavors and utmost exertions to introduce the services of the lessor to the public, and was required to keep accurate records on stationery furnished by the lessor, and to send all goods received for cleaning and repairing to the lessor. The lessor permitted the lessee to use the name “Weinfield’s Inc.,” and agreed, with certain limitations, to defend actions brought against the lessee for damage to or loss of goods. It was further provided that the lessor might enter the leased premises in case of a default in the payment of rent, and also to view and make improvements. The instrument provided for termination of the lease by one week’s notice by either party.
In her conversation with Weinfield, Michaud was told she would have to open the store at 8 a.m. and close it at
On October 18, 1938, Michaud worked in the store ten hours. During the week ending October 22, 1938, she worked there fifty-nine hours. On Saturday, October 22, 1938, she worked until 5 p.m. when one Helen Chansky, an employee of the defendant whose duties were those of an “inspecting relief girl,” entered the store, took over the cash receipts from Michaud and took charge of the store. Michaud then left the premises and thereafter Chansky waited on customers up to 9 p.m. An inspector of the department of labor and industries had visited the store on October 17, 18, 19, 20 and 22. Subsequently Michaud “was relieved of her employment without notice and by the verbal statement of Richard Weinfield, treasurer of the defendant corporation, but was paid $24 in lieu of notice.”
The defendant contends that it does not appear from the record, beyond a reasonable doubt, that the period of work in excess of that prescribed by the statute was required by the agreement for lease or permitted by the defendant; that no relationship of employer and employee was created under the lease because nothing in the instrument gave the defendant the right to control the hours of work of Michaud; and that paroi evidence is not admissible to contradict or vary the terms of the lease, and is not to be used against it, even though the evidence has been admitted. O’Malley v. Grady, 222 Mass. 202. This rule, however, does not extend
A consideration of the lease and the agreed facts leads to the conclusion that the relationship between the defendant and Michaud was that of employer and employee. Although the method providing for payment is not controlling, it may well be important. McDermott’s Case, 283 Mass. 74, 76. The unusual method adopted in the lease is significant. The fact that the “rent” was to be all the sums received by Michaud except $12 a week makes it appear unlikely that she was pursuing her own business and enjoying its profits, and the further fact that this sum was not deducted by her but was paid to her weekly by an employee of the defendant indicates that she was regarded and treated as an employee, and stood in that relationship to the defendant. Other significant facts leading to that conclusion are these: that the defendant fixed the prices to be
The posting of the notice of hours of work is not without significance. The defendant contends that it does not appear whether the information contained therein was furnished by it, by Michaud, or by a thud person, but it seems obvious that Michaud would have no reason for posting such a notice, and that the defendant, as an employer conforming to the terms of G. L. (Ter. Ed.) c. 149, § 56, as amended, would have the duty to post it. It is a fair inference that it did so.
The governing statute effective at the date of the acts of the defendant that are1 complained of (G. L. [Ter. Ed.J c. 149, § 56, as amended by St. 1935, c. 200) forbids the employment of women in certain places including “mercantile” establishments for “more than nine hours in any one day” or for more than forty-eight hours a week, with certain exceptions not here material. Since we are of the opinion that the agreed facts warrant findings that Michaud was an employee of the defendant, and that the latter employed or permitted her to work more than nine hours in one day and more than forty-eight hours in one week, and employed and permitted her to work hours other than those stated on the printed notice required by the statute, it follows that the finding of the judge that the defendant was. guilty of these violations of the statute was not erroneous.
Judgment on the finding in each case.