*1 Wyoming CO., Corpo BEN REALTY SEE Appellant ration, (Plaintiff below), SECURITY COMMISSION
EMPLOYMENT Wyoming, Appellee (De below). fendant
No. 3491.
Supreme Wyoming. Court of
June Brown, Healy, Apostólos,
George M. Drew, Barton, Casper, ap- Apostólos & pellant. Gen., Atty. Cheyenne, Raper, F. John Gen., Atty. McClintock, Sp. Asst. G. James Houston G.
Casper,
Wehrli Williams
Williams, Casper,
appellee.
PARKER-,
J., and HARNS-
Before
C.
McINTYRE,
BERGER, GRAY, and
JJ.
delivered
Mr. Chief
PARKER
Justice
opinion of the court.
by the State
company, licensed
Plaintiff
to recover
sued
real estate
as a
Employment Security Commission
from
paid
protest after
under
contributions
earnings
of the
assessed on account
plaintiff’s
working out of
of two
court,
trial
sponsored by
it.
office
employees
finding that the salesmen
statutes and
pay
obligated to
plaintiff was therefore
de-
assessment,
judgment for the
gave
resulted, pre-
fendant;
appeal has
and this
real
not
senting
of whether
circumstances
estate salesmen
employees within
record are
shown
meaning of the
Law,
W.S.1957.
§§ 27-22-—
the court’s un-
undisputed,
The facts are
plain-
that:
disclosing
challenged findings
broker
was a licensed
tiff
oper-
Casper,
two salesmen
an office
informal
under an
ating out of
wages
salaries
agreement with no
oral
services,
their
plaintiff for
them
compensation
from
being derived
only
their
participation in a share
agreed
an
the sale of
from
obtained
commissions
*2
by
operating
prepared
out
suggested
the salesmen while
who
ads or
property
estate
a
office;
advertised;
plaintiff’s
plaintiff
to
to
of
attended
be
if a salesman
to
wished
closing
sales,
place
collecting
fifty
of
commis-
per
all
such
more than
dollars
month in
proper
and distributing
advertising,
paid
additional;
sions
them to the
he
for the
a
parties;
which a
paid
the amount of
salesman
and
telephone
commission
furnished
for a
residence,
plaintiff
received
was
his
which
salesman
varied since
was listed in adver-
Exchange,
tisements,
Casper
supplied
a
of
automobile,
member
the
his
Multilist
own
and
paid
portion
relating
bonds,
all com-
all
which received a certain
of
costs
to it and for his
missions,
license,
cards,
list-
property
expenses;
and if the
was a
sold
business
and other
plaintiff
agency
obtained from
security
another real estate
did not collect social
or
agency
portion
said
also
of the withhold
received a
Federal
income tax on behalf of
commission, plaintiff
split-
occupation
and the salesman
salesmen and
no
tax to
any
ting
city
the balance of
of
the
filing
the commission
for them —a salesman
his own
by
splitting
latter,
sale made
individual
the
as well as
income tax return on Schedule
(e.
reporting
the
of
sale
C and
necessary
paying
cost
items
for the
his own em-
g.,
put
ployment tax;
new locks
order to
on a house in
because of
nature of
the
;
occupation
saleable)
it
re-
make
the salesmen
not
to
were
salesmen’s
the extent
quired
expected
plaintiff’s
depended
or
office which
to
their remuneration
be
on their
any specific
efforts,
during
own
hours
took vaca-
individual
the salesmen did not
they wished;
Casper
any
money
tions as
receive
amount
a rule of the
certain
of
over
particular
prohibited
period
they
of
a
might go
Board
associated
times
Realtors
—at
holding
real estate
other
for a month more without earning
salesmen from
or re-
jobs
ceiving
engaging
full-time
full-time
a commission and at
other
other times
professions; Scherck,
might
receive
of
concerned
earn and
several commissions
one
salesmen,
exclusively
in one
worked almost
a
month.
as
real estate
engaged
salesman but
in some
findings,
parties
In
to
addition
these
part-time
prop-
activity (principally
other
dispute say
without
that the record discloses
erty-management
plaintiff),
work for
while
facts,
germane
plaintiff
certain other
Garrett,
other
de-
mentioned
asserting that at the time of the trial there
majority
to
working
voted
her
hours
unemployment
no claim
bene-
selling
estate, ordinarily
of real
work-
by
salesmen;
fits
submitted
that
home,
devoting
ing out of her
consid-
but
inquiring
the defendant had advised an
management
time
her
erable
to the
own
he
salesman that
would not be considered
properties;
plaintiff
set out
unemployed
to be
policies,
sales-
expected
broad
it
“Unemployment Compensa-
Wyoming
follow,
men to
but
no
over
exercised
control
long
license,
tion Act”
a
he
valid
general
performance
or routine
qual-
was
with a
associated
and still
services, required
specific re-
salesmen’s
no
property;
relationship
ified to
sell
ports,
meetings,
and had no formal sales
plaintiff
between
and a salesman
could
provided
they
attend; plaintiff
must
party
any
time
terminated
either
with-
office, stenographic help,
general
an
notice, whereupon
out
a salesman could find
supplies, stationery,
purchase
forms for
con-
sponsoring
another
broker and thereafter
tracts,
agreements, closing agreements,
sales
selling.1
immediately
The defendant
resume
pay
telephone service, etc.,
up to
and would
testimony indicating
to
calls attention
per
fifty
prop-
dollars
month to advertise
every real es-
required to close
salesmen,
a broker is
listed
each
erties
two
conjecture
Although appellant
on
no more than
statement
in its brief
insists
part
appellant.
“Few,
any,
if
Even
such
real estate salesmen
any
case,
not affect
decision
it could
earn a
in each of
commission
us; rather,
twenty-six
any
year,
before
would
in the matter
so
weeks
one
thereby
affected
be for the salesmen
bring
[under
would
W.S.1957
inequity
benefits,”
qualify
(1965 Cum.Supp.)]
of such a situation
legislators.
agree
appellee
of their
the attention
must
that such
we
33-3SS, W.
Act,
money;
Salesmen
handle all the
and to
33-344—
transaction
tate
pub-
S.1957,
protect
passed generally
it was
January
subsequent to
untrustworthy real
from dishonest
sales-
lic
part-time
plaintiff’s policy not to have
*3
pub-
might defraud the
salesmen who
sales-
estate
part-time
time three
men and at that
bring real
lic,
construed to
find
should not be
either
they should
men were told that
provisions of
salesmen within
their li-
estate
put
or
sponsoring broker
another
arguing,
Security
In
list;
Employment
Law.
so
plaintiff
that
on -the inactive
cense
27-23,
I, par. 1:
subd.
thirty
plaintiff sets out
hours
to be available
§
asked salesmen
production
“
showing
per
and
for the
week
per-
any
‘Employment’
service
means
existing practice
sales,
that under
1,
April
was
prior
which
formed
to
1941
money
paid to a sales-
was
whenever earnest
employment
defined in this subsection
as
plaintiff
check
to
man he endorsed
1941,
April 1,
prior-to
date,
after
such
and
account, which
in
deposited
and
an escrow
it
‘employment’, subject
provi-
to the other
purpose;
plaintiff
for
had established
that
service,
subsection,
in-
means
sions
this
plaintiff’s president
disbursed
that
commerce,
cluding
in interstate
service
Multilist,
listing
commission to the
performed
wages
any
or
con-
kept
plaintiff
personnel;
and his
that
sales
hire,
oral, express
tract of
written or
hours, expected
regular
salesmen
implied.”
to
ethical
and
maintain certain
standards
27-23,
N:
and
subd.
§
will,
good
make no
contribute to its
to
“ ‘Wages’
payable
means all remuneration
listing, or
misrepresentations or unrealistic
source,
for services from whatever
in-
account,
buy property
in
his own
and
on
cluding commissions and
bonuses and
up
general
ethics of
to live
the code of
cash value of
payable
all
in
remuneration
policy
profession,
the real
”*
* *
any medium other than cash.
enforced;
plaintiff
plaintiff
spon-
that
had
ads,
radio,
directory
saying
sored
television and
at
though
wages
even
are defined
signs upon prop-
expense,
its own
source,
include
any
remuneration from
sale,
erties listed for
without the name
aof
including
bonuses,
commissions and
the Act
kept
being
sign,
on the
salesman
and
files when it
employment
refers to
nonetheless
and records in its office available to each
employment
means
sense,
in a
citing
true
messages
who also secured
from Realty Mortgage & Sales
v.Co. Oklahoma
listings
office;
picked up
at the
that Employment Security Commission,
Okl.
197
plaintiff’s president
308,
saw no reason for hav-
the real estate employees purposes making them laws. unemployment TRUST BANK AND NATIONAL
FIRST WYOMING, corporation, OF COMPANY Appellants Becky Boehler, (Defendants below),
v. FINKBINER, Harold R. Finkbin
Donald B. MacDougall, Dorothy Ap er, E. (Plaintiffs pellees below). FINKBINER, Harold R. Finkbin
Donald B. Dorothy MacDougall, Ap er, E. pellants below), (Plaintiffs BANK NATIONAL AND TRUST
FIRST WYOMING, corporation, OF COMPANY Appellees Boehler, Becky (Defendants below).
Nos.
Supreme Wyoming. Court
July 1, 1966.