*2
BRATTON, HUXMAN and
Before
MURRAH,
Judges.
Circuit
HUXMAN,
Judge.
case arises
the Social Secur
This
under
ity Act,
620,
seq.
amended,
49
42
Stat.
U.S.
appellee,
C.A.
et
§
Inc.,1
Company,
Wholesale Oil
sued
security
United States to recover social
protest.
taxes
it had
under
therefor,
recovered
only,
government
appealed.
ques
has
operated
persons
tion is whether
who
filling
gasoline
retail
stations owned
within the mean
substantially
ing of
The facts
the Act.
are
these :
corporation,
is a Kansas
engaged in
petroleum
the distribution of
products.
In 1938
through
it en-
agreements
tered into written
with in-
filling
dividuals for the
stations owned
it.
differing
respects,
some
the contracts are substan-
tially
They generally provide
the same.
that the
.equip-
was to
all
furnish
funds,
ment,
and merchandise
station;
stoсk the
towas
devote
entire
time
the-
thereof;
bank
that a
account was
opened in the
ain
name
it;
designated by
bank
daily deposits
was to make
receipts
dissenting.
Judge,
BRATTON, Circuit
account and was to furnish
daily reports
designated,
detailed in-
;
formation
that all books and records
kept
were to be
in office.in
Hutchinson, and that no obligations were
except upon
incurred
express
to be
au-
Company;
thority of the'
that credit ex-
tended
of the Company
Herein
called
dence,
accepted by
operator;
are
us. But whether
was at the risk
drawing account
the conclusions
receive a
of law which
was to
the court
month, which was
drew therefrom
of from
is a matter
$100
correct
$50
concerning
chargеd
one-half
to be
which we
our own
exercise
*3
stated
receive at
independent
judgment.
which he was
dispose
times;
operator could not
that the
Appellee
position
took
that the
in the business
of his interest
partnership
tracts created a
rather than the
of the
Company. Some
of the
employer
employee.
relation of
years
of
number
contracts were for a
the court at the conclusion of the trial ex-
an indefinite time.
while others were for
this,
pressed grave doubts as to
it ultimate-
subject
were
All but one of the contracts
ly adopted
theory,
by
as evidenced
its
by
party on written
either
to cancellation
of
second conclusion
law.
days,
ninety
ex-
notice of from fifteen to
until
сept
canceled
that three could not be
Contracts for the rendition
serv
of
pro-
year. Several contracts
after the first
ordinarily
ices
gen
result
one of three
operator
purchase the
could
vided that the
may
eral classifications —such contracts
equipment
price
to be fixed
stock and
at
partnership,
create a
indеpend
that of an
by
Company, upon
of
termination
contractor,
ent
or
that master and serv
purchase
All
orders were
the contract.
It
ant.
to consider
re
from the
at Hutchinson.
be issued
office
lationship
by
created
these contracts be
Express authority
from
had to be obtained
cause this enables us to
into
determine
operator could
hоme office before the
By
which classification
fall.
con
any obligation.
stations were
incur
sidering the elements of
gen
these three
operated
in the
name.
classifications,
eral
we eliminate those that
operator quit,
When
dis-
one
there was no
do not fit the facts and thus determine the
assets,
only
tribution
final
but
ac-
correct
created
the cоn
counting
profits.
new
When a
tracts.
station,
operator
took over a
the license
agree
We cannot
with the trial
canceled,
operation
but
new
special
court
the contracts created a
was continued under the same license.
partnership
joint
joint
or
A
adventure.
testimony
Oral
introduced at
adventure is
form
partnership,
but one
of a
substantially
trial
All
as follows:
checks
purpose
part
and for the
of this
of the
supposed
on the bank account were
to be
speak only
discussion
will
partner
we
aof
Company.
operator
issued
ship. A partnership
community
connotes a
only
could check
the account
interest.
More is
than a com
emergency.
paid
All bills
from the
munity of interest
the fruits
home office of
Small
bills
venture. There must be
such interest
paid by
petty
out of
management
the business and also in the
Company
cash. The
left
the matter of
business. There must also be
lia
prices
operator.
fixing
to the
Orders for bility.
present
None
these elements is
placed by
merchandise were
Company
here. The
owned all the assets.
order
whеre the
was less than car-load
sites,
stations,
owned
and all the
through
lots. Car-load lots were ordered
time,
merchandise.
no
during
At
either
at Hutchinson. The
of the business or
at
determined the character of
stock
he
contract,
termination of
opera
did the
always
keep.
help
hired all the
acquire
tor have or
vested interest
the station. Salaries for such
at
any
property
used in the business.
proceeds
out of the
of the business.
privilege
which some of the contracts
resulting
“split fifty-
Loss
from credit was
gave
purchase
the business
fifty.”
upon termination of the contract evidenced
appropriate
The trial court made
ownership
partner
no
assets,
as a
in such
findings of fact and conclusions of
them,
law.
buy
because he could
not at their
concluded as a matter of law
appraised value,
that the
re actual or
but
at such
lationship
parties
between the
was not
value as
alone
place
chose to
employer
employee,
but was more
employee,
on them. Had he been an
he
special partnership
nature of a
in the
or could have done this either during the
joint adventure. There was no
conflict
upon
continuation
the contract or
its
findings
termination,
the evidence. The
of fact are not
provision
without such
issue, and, being supported
provision
the evi-
the contract. This
no
means
is,
question
Were
wants
The next
employee
than that if
more
Ii)
independent
so,
contraсtors?
business,
valu-
buy
may do
at a
he
176,179,
Goodson, Cir.,
121F.2d
it.
places
ation which the
Neither did the
Jones
right we
elements
discussed in detail the
,
operator have
distinguish
independent contractor
judgment in the
an
independent
to exercise his
employee.
general,
that:
“In
We said
business.
management and
subject
testimony to
if an
control
individual
oral
was some
While there
merely
as to the
direction of another
operator was free
accomplished
manage-
result
the work
in the
dictation of the
business,
not as to
ac
when
the means and methods for
operation of the
ment and
result,
independ
complishing
is an
the contracts
light
examined
of
*4
testimony,
right more ent contractor.”
this
the
all of
con-
was
The business
fanciful than real.
оnly
We also said that
a “reasonable
Company; the
the
name of
ducted in the
measure of
and
over
direction
control
kept
in the name
bank account was
performing
method and means of
serv-
the
it;
the
designated by
Company bank
a
ice is a constituent element of the rela-
* *
against
account
written
the
checks
tionship of master
servant
and
writ-
оnly by
Company and none were
the
Did the
have a
meas-
reasonable
by
operator
account
the
ten
this
of’
ure
direction and control over
the
might
emergency
draw
h'e
in an
save that
conducting
method and means of
busi-
The license
against the account.
a check
ness, or, putting
way, what
it another
of
was
in the name
for
taken
the station
opеrator
policy
shaping
do in
could
ter-
Company. When
independently
conducting
or
of or
the business
contract,
the license of
his
minated
in opposition
to
wishes
.the
It con-
Company
tinued,
not surrendered.
was
Company?
analysis
From the
con-
operated under
station was
requirement
already
out,
tract
as
set
operator, or
by
new
license
same
inеscapable
conclusion is
that he
do
could
required to
The
employee.
very little,
anything,
opposition
but
if
reports
detailed, daily
Hutchinson.
to
make
Company.
to the wishes of the
could
place
for merchan-
orders
he could
not even
checks on
bank
write
account.
purchase
lots,
car-load
dise less than
fact,
As a
he did
a
matter
not have
home office
were issued
orders
name,
account
his
he
while
issued
car-load lots were
and orders for
requirements
his
determined
mer-
to
by
Company.
procure
He had
to
chandise,
subject
supervision
this was
to
he
before
the home office
by
pur-
because it issued all
obligations.
any
What inde-
could incur
urged
chase orders.
it is
But
fixed
he
management
рendent powers of
did
prices
his working
and determined
hours.
could he do that
him? What
leave
give
His
him
contract did not
either of
not veto?
contract
Company could
The
rights.
testimony
these
find-
right
prices.
fix
did
him the
give
to
ings of the court were that as a matter of
testimony
was that
The oral
.the
practice
prices,
he
his
set
determined
prices.
fix
permitted, him
Neither did
hours,
rеplenishing
ordered
liability
any
for
he
the debts
assume
stocks,
engage
free to
such ad-
partnership
joint
adven-
the so-called
expedient.
ditional
as he deemed
But
not become
for mer-
He did
liable
ture.
chandise accounts
privileges
even these
were exercised in
obligations
or for other
conjunction
Company.
with the
E. A. An-
only
by the
lia-
incurred
drews, рresident
Company,
testified
bility
had was that he shared
net
that such
“keeping
place
matters as
losses,
any.
sharing
if
operating
But
mainly,
order
and the kind of stock to
or losses alone of
business is
a
buy,
prices
partner-
set,
which
by
prices
itself to
a
sufficient
create
particular
ship relation.2 The
created
to suit their
trade of their own
town,”
many
lacked
thesе contracts
of the usual
were discussed. He further testi-
n elements
that,
necessary
partnership,
“They
create
fied
a
the location. That
n either
special,
general or
the nature of was
reason. But we
talked those
things
necessary.”
accordingly
adventure. We
over when it was
Can
partnership
any question
be
that no
relation existed there
as to
clude
what would
parties.
happened
have
if
sugges-
between the
Kan.
Am.Jur.
229, 109
Vol.
P.
40, Partnership,
771.
§
39;
C.J.,
Vol.
Partnership
[61]
d;
Weiland
Sell,
had been have a
concerning
you
matters
paying
tions
these
situation where
privileges,
these
disregarded?
salary,
managers,
doubt these
No
contract,
by.
specified salary
soon a
given
which were not
referred
in the con-
**
addition,
account,’
tract as
‘drawing
would have been withdrawn.
always
its
enforce
could
As stated
us
the Goodson
ever-present
suggestions by
cancella-
supra, only a reasonable measure of control
cancel
tion clause
which it could
over the
performing
method and
means
giving notice
fifteen
contract
services is
to create the re-
ninety days.
While it was stressеd
lationship of employer
employee.
hours,
the con-
fixed his own
We think
it is matter of com
privilege.
give him
tract did not
knowledge
mon
manager
of local
him to devote his entire time
organization
necessity
units
a chain
operation
Can
of the business.
there is invested with a certain amount of dis
hap-
any
doubt as
what would have
cretion and
control in the
oрen
pened if the
had chosen to
local unit.
is doubtful whether
10 o’clock
the station
from to
each amount of
oper
discretion vested in the
though
morning,
such
even
stations,
ators
these individual
all of
profit?
ob-
sulted in a net
answer
belonged
Company,
to the
differed
*5
vious.
materially
managers
from that vested in
of local stations of
large
some of our
oil
The
fаct
stresses the
companies operating throughout
na
the
discharge
employee
not
at
it could
the
tion,
admittedly
employees.
who
are
It is
controlling,
will. But that
is not
or even
undisputable that at the
termination
the
very persuasive. A servant hired for a
contract everything belonged to the Com
years
definite number of
is nonetheless an
pany.
site,
still
building,
owned the
thе
though
employee, even
the master is with
stock
opera
of merchandise. The
power
discharge
to
Whether the
out
him.
stepped
except
tor
out without anything
compensation
paid
is
in a
salary
the
which his labor had earned.
percentage
in
fixed sum or
a
the
cases,
is
determinative. We think the true
There is a line of
known as the
operators,
rеlationship
Cases”,3
of these
when view
“Bulk Sales
in which the Circuit
record,
light
uniformly
opera-
ed in
of the entire
is
the
Courts have
held that the
correctly
in
reflected
the observations
tors
distributors of bulk stations were
the conclusion
the independent
the trial court at
employees.
contractors and not
hearing, as follows:
“At the same time
are in full
We
accord with the decisions
very
ordinary
cases,
it
like
they
looks
much
the
em-
in each
but we think
employee relationship
clearly
where
ployer
upon
and
too
distinguishable
are
the facts
employee
guaranteed
gets
question,
the
a
amount
the
case here in
care-
as a
salary
month, which
reading
ful
thereof will
In the
reveal.
paid,
case,
Higgins
that he is
then
and
rеceives some Texas Co.
the company
v.
profits provided
bonus
are
out
there
into a
entered
contract
fact,
say
I
you
As a matter of
profits.
to
agreed
in which the
to distribute
frankly
company’s petroleum
that at this lime I
to
products,
am inclined
which
shipped
that that
about
it
These
believe
what
is.
consignment,
were
to him on
and
attempted
peоple
charged
were
to be hired
run
to him
were
on the books of the
business;
they
given
company
price.
fixed
interest
at a
He furnished
profits.
only thing they
equipment,
fur-
his own
all
trucks,
such as tanks and
labor,
and
drivers, paid
was the time
which
nished
hired
wages,
their
they
they
furnished had
would have
been
full responsibility
and assumed
for them.
salary
nothing
paid
products
and
more. So that As the
were sоld he remitted the
you analyze
give
price
when
this contract
thereof
full
to the company and re-
practical
company
stipulated
it
construction
and consider
ceived
his
as to
evidence
the manner in which the
commissions.
erected and owned two
actually operated
parties
under
con- bulk stations which
he used in connection
tract,
you just
me
it seems to
about with the business. He conducted both sta-
3
Higgins,
Cir.,
F.Supp.
D.C.,
Texas
See
Co. v.
Cir.,
2
31
affirmed 7
636;
417; Orange
Fly,
118 F.2d
American Oil
F.2d
Co. v.
119
State Oil Co. v.
Cir.,
824;
Fahs, D.C.,
F.Supp. 509,
135
F.2d
147
52
A.L.R.
affirmed 5
Co.,
Cir.,
Cir.,
Glenn
Standard Oil
mеnts employee, cases, employer and in of within the other even in each facts meaning Security Act, terms, Social extend this these opinion amended, main, Stat. lengths. U.S.C.A. § to undue In seq. Fly, American Oil Co. them 1101 et v. is the same. all of pattern their Co., supra. supra; 'Glenn Standard Oil independent reveal an facts my view that the in which he It is should carried interest and in which proprietary affirmed. had