Opinion
29842.
DECIDED MARCH 11, 1943.
Appeal; from Fulton superior court — Judge A. L. Etheridge. February 3, 1942.
A. L. Henson, Clifford Walker, Otis L. Hathcock, for plaintiffs in error. Dillon Rose, contra.
Three businesses, which together employ eight or more persons more than twenty weeks in each year, are not necessarily owned or controlled by the same interests, so as to constitute an "employer," as defined in the unemployment compensation law (Code Ann. § 54-657 (g), (1), (4), where it appears that one man operates one of the businesses individually and is interested as a partner in the operation of the other two businesses, having in each of the other two a different partner, although the two businesses are "related businesses."
DECIDED MARCH 11, 1943.
Sara Jacobs Leaf was employed by Dayan's, a partnership composed of Joseph Dayan and Edmond Dayan, who operated a retail mercantile establishment under this name at 33 Whitehall Street, Atlanta. The employee terminated her employment on March 1, 1941. On April 17, 1941, she made application to the Bureau of Unemployment Compensation for benefits under the unemployment compensation law. The bureau designated a field deputy to investigate this application; and after receiving his report the bureau on May 21, 1941, denied the application for compensation, on the ground that it appeared that the employer was not a "covered employer," for the reason that the partnership did not employ eight or more employees for twenty or more weeks in any one calendar year, as required under the unemployment compensation law. On June 5, 1941, the applicant filed notice of appeal from the award, and this appeal was heard before the appeals referee on July 2, 1941, at which hearing evidence was presented by both the employee-applicant and the employer. The appeals referee approved the award of the bureau, and denied compensation. The denial of compensation by the appeals referee was based on the following findings of fact made by him on the evidence presented at the hearing:
"The evidence discloses that the claimant went to work at 164 Peachtree Street, Atlanta, Georgia, for Dayan Brothers in 1938 at $15 per week, plus commissions, as a saleslady. With various intervals off for illness, she continued in the services of Dayan Brothers at 164 Peachtree Street until about the middle of January, 1941, when that store was closed, and she then went to work at Dayan's at 33 Whitehall Street, Atlanta, Georgia. She earned, the greater part of the year 1940, $16 per week; later in the fall her salary was raised to $17 per week and remained that until she left the services of Dayan's on March 31, 1941. The evidence discloses that there was an argument between her and the manager of the store right after the close of the day's work on March 31, 1941, and as a result of the argument she felt that she could no longer work [under] that particular boss, who she contended shouted at her and nagged at her continually. The evidence discloses that Dayan Brothers, a retail dry-goods store at 164 Peachtree Street, was a partnership, the partners being Edmond Dayan and David Dayan, brothers. The evidence discloses that the business at 33 Whitehall Street, operated under the trade-name of Dayan's, is a partnership composed of Edmond Dayan and Joseph Dayan. The evidence discloses that The Linen Store is a trade-name for the individual business of Edmond Dayan. The Linen Store was operated first during the fall of 1939, and operated until the end of the first week in March, 1940; was closed at that time and reopened August 10, 1940, and is still in operation. The place of business known as Dayan's at 33 Whitehall Street opened for the first time October, 1940. The three places of business are very similar. They handle almost identical goods in every respect. Edmond Dayan, the individual owner of The Linen Store, is the purchasing agent for the partnership known as Dayan's, and apparently did most of the purchasing for Dayan Brothers was [sic] in business at 164 Peachtree Street. The claimant worked for the partnership composed of Edmond Dayan and David Dayan during the years of 1938, 1939, and 1940, and until about January 15, 1941, at which time she went to work for the partnership composed of Edmond Dayan and Joseph Dayan. She testified that the goods generally were bought for all the stores in one order, were shipped to Atlanta in one shipment, and very commonly were delivered to The Linen Store at 95 Whitehall Street, and were opened there, divided, and distributed. The witness Miss Davis, who had acted as cashier at The Linen Store, testified that shipments of goods, even though marked to Dayan Brothers at 164 Peachtree Street, were generally delivered to The Linen Store at 95 Whitehall street, and there opened and divided. The claimant would go to The Linen Store on several occasions, and assist in opening up, dividing, and marking the goods. The referee finds as a finding of fact that Edmond Dayan is individually the owner of The Linen Store, and has the stock of goods at that place of business insured in his own name. He registered his trade-name for his business in October 1940. He further finds that Dayan's, 33 Whitehall Street, is a partnership composed of Edmond and Joseph Dayan, opened business in October, 1940, and registered its partnership tradename in May 1941. He further finds that the business operated at 164 Peachtree Street under the name of Dayan Brothers was a partnership composed of Edmond Dayan and David Dayan."
The appeals referee gave the following reasons for his decision approving the original award denying compensation: "Section 19(g) (1) of the Georgia unemployment compensation act makes any employing unit which has, for some portion of a day in each of twenty different weeks within either the current or preceding calendar year, employed eight or more individuals a covered employer. Dayan Brothers had not employed eight or more. Dayan's had not employed eight or more. The Linen Store had not employed eight or more. Section 19(g) (4), defining a covered employer, says `Any employing unit which, together with one or more other employing units, engaged in related businesses, is owned or controlled directly or indirectly by the same interests or which owns or controls one or more other employing units engaged in related businesses, and which, if treated as a single unit with such other employing units or interests, or both, would be an employer under paragraph (1) of this subsection,' is a covered employer. These three stores, 164 Peachtree Street, 33 Whitehall Street, and 95 Whitehall Street, were all `engaged in related business,' but they were not owned by the `same interests.' The 33 Whitehall Street place and the 164 Peachtree Street place lapped over in their operations from October, 1940, to January 15, 1941, only. The 164 Peachtree Street place was a partnership; the 33 Whitehall Street place is a partnership; the partners were not the same in the two places of business. David Dayan owned one-half interest in the 164 Peachtree Street store, Joseph Dayan owns one-half interest in the 33 Whitehall Street store; neither of them owns any interest in The Linen Store, 95 Whitehall Street. Edmond Dayan alone owns this business. Each of these businesses was separate from the other business so far as ownership was and is concerned. Edmond Dayan alone had complete control and `interest' in the Linen Store. It is true he had a one-half interest in Dayan Brothers at 164 Peachtree Street, while that business was in operation; it is also true that he now has one-half interest in Dayan's at 33 Whitehall Street. According to the evidence Joseph Dayan owns no interest in any business other than his one half in Dayan's at 33 Whitehall Street. Dayan's at 33 Whitehall Street does not work a sufficient number of employees to be a covered [employer] under the law. The Linen Store, owned individually by Edmond Dayan, does not work a sufficient number of employees to be covered under the law. Dayan Brothers, which went out of business January 15, 1941, did not work a sufficient number of employees to be covered under the law. The referee is of the opinion that each of these businesses was owned by separate `interests' from the ownership of the other business; and since the businesses were not owned `by the same interests,' the referee is of the opinion that the claimant has not worked in covered employment and has not earned any wages in the base period in covered employment."
The applicant for compensation applied to the Board of Review to set aside the finding of the appeals referee, and on September 4, 1941, that board reversed the decision of the appeals referee, and held that the applicant was entitled to the compensation applied for, ruling as follows: "The Board of Review is of the opinion that inasmuch as all these stores being owned by brothers, the dry goods being shipped to the main store and there opened and divided among the other stores by the employees working at the partnership and individually-owned stores, which does not work as many as eight employees, and are so similar and closely related to each other, should be classified by this board as a single unit, and should be required to come under covered employers and pay wage earnings."
Edmond Dayan, doing business at The Linen Store, 95 Whitehall Street, Edmond Dayan and David Dayan, a partnership doing business as Dayan Brothers at 164 Peachtree Street, and Joseph and Edmond Dayan, a partnership doing business as Dayan's at 33 Whitehall Street, filed in the superior court of Fulton County, the county where the employee Sara Jacobs Leaf was last employed, their petition under the unemployment compensation act (Ga. L. 1937 pp. 806, 818; Code Ann. § 54-619), naming Ben T. Huiet, as commissioner of the Department of Labor and ex-officio administrator of the unemployment compensation law, and Sara Jacobs Leaf as defendants, to review the decision of the Board of Review. The petitioners contended that the decision of the Board of Review was contrary to law and without evidence to support it, in that they did not constitute an "employing unit which, together with one or more other employing units engaged in related businesses, is owned or controlled directly or indirectly by the same interests or which owns or controls one or more other employing units engaged in related businesses, and which, if treated as a single unit with such other employing units or interests, or both, would be an employer under paragraph (1) of this subsection." They contended that Edmond Dayan, formerly doing business as The Linen Store, did at no time employ eight or more employees for a period of twenty weeks or more within any one year, and was therefore not liable for contributions as an employer under the act; that the same applied to David Dayan and Edmond Dayan, formerly doing business as Dayan's and that the same applied to Joseph Dayan and Edmond Dayan doing business as Dayan Brothers. They contended that the partnerships, as found to be in existence in accordance with the findings of fact, disclose the existence of three separate entities, neither of which constituted an employer under the unemployment compensation act. The commissioner filed a response in which he denied the contentions of the petitioners, but admitted the allegations of fact in the petition. The issues made by the petition and the response were heard by a judge without a jury, and the following judgment was rendered: "The decision of the Board of Review, . . to which exception was taken in this case for judicial review, is reversed and set aside as being contrary to law." To this judgment the commissioner and Sara Jacobs Leaf excepted. Their bill of exceptions was transmitted to the Supreme Court; and that court, not having jurisdiction, transferred the case to this court.
Findings of fact of the appeals referee of the Bureau of Unemployment Compensation, where supported by evidence, are conclusive and binding. An employing unit under the unemployment compensation act "means any individual or type of organization, including any partnership, association, trust, estate, joint-stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which has, or subsequent to January 1, 1936, had in its employ one or more individuals performing services for it within this State." Code Ann. § 54-657(f). An employer under the act means "any employing unit, which for some portion of a day, but not necessarily simultaneously, in each of twenty different weeks, whether or not such weeks are or were consecutive, within either the current or the preceding calendar year, has or had in employment eight or more individuals (irrespective of whether the same individuals are or were employed in each such day)." Code Ann. § 54-657 (g), (1). An employer under the act is also defined to be "Any employing unit which, together with one or more other employing units, engaged in related businesses, is owned or controlled directly or indirectly by the same interests, or which owns or controls one or more other employing units engaged in related businesses, and which, if treated as a single unit with such other employing units or interests, or both, would be an employer under paragraph (1) of this subsection." Code Ann. § 54-657 (g) (4), It is contended by the respondents that the petitioners, as to the complaining employee, constitute an employer within the meaning of paragraphs 1 and 4 of subsection g of the section. The three businesses, which together employ eight or more persons more than twenty weeks in each year, are not owned or controlled either directly or indirectly by the same interests. One of the businesses is owned and operated by Edmond Dayan by himself. Another of the businesses, the one operating the store at 33 Whitehall Street, in which the respondent employee was employed, is a partnership composed of Joseph Dayan and Edmond Dayan, and the business known as Dayan Brothers is a partnership composed of David Dayan and Edmond Dayan. The foregoing is based on the findings of the appeals referee, which were supported by the evidence. Whether or not these three businesses are "related businesses," they are not "owned or controlled directly or indirectly by the same interests." The two partnerships are separate and distinct business entities. The individual business of Edmond Dayan is entirely separate and distinct from either of the other businesses, although Edmond Dayan owns a half interest in the other two businesses. Joseph Dayan only owns a half interest in one of the businesses. David Dayan only owns a half interest in another of the businesses.
In the absence of some fraud or subterfuge, which does not here appear, the fact that these persons are brothers and for that reason co-operate in the running of the various businesses does not render the businesses "owned or controlled directly or indirectly by the same interests." The fact that Edmond Dayan has an interest in all three of the businesses, and the fact that merchandise would be received at the store of Edmond Dayan and would be purchased by him and a portion thereof would be by him sold and delivered to the two stores in which he is a partner, do not demand a finding that the businesses are owned or controlled directly or indirectly by the same interests. Purchasing enough merchandise in bulk to supply the three stores might enable Edmond Dayan to obtain it at a lower wholesale price for himself, and enable him to furnish it to the other stores in which he was interested at a lower price. Edmond Dayan being interested in all three businesses and being the brother of the half-owners of the other two businesses, the fact that he purchased the merchandise in this manner and distributed a portion to each store does not of itself operate to make the three businesses so closely connected as not to be separate businesses, and does not constitute them businesses controlled directly or indirectly by the same interests, as provided under paragraph 4 of subsection g of the above section of the unemployment compensation act. Independent Gasoline Co. v. Bureau of Unemployment Compensation, 190 Ga. 613 ( 10 S.E.2d, 58). It appears that one of the members of the firm for which the plaintiff worked is not interested at all in either of the other two businesses.
We have considered the case of Kellogg v. Murphy, 349 Mo. 1165 ( 164 S.W.2d 285), cited by counsel for plaintiffs in error, in which the cases dealing with similar provisions in the unemployment compensation laws of several States are reviewed. However, this case does not decide the question here presented, and is not controlling.
It follows that the respondent employee was not employed by an employer, within the meaning of the sections of the unemployment compensation law quoted above, and that the superior court did not err in holding that the decision of the Board of Review was contrary to law.
Judgment affirmed. Sutton and Felton, JJ., concur.