Opinion
No. 31464.
September 17, 1946.
(Syllabus.)
MASTER AND SERVANT — TAXATION — Real estate salesmen associated with mortgage company were not "in the employment" of such company under Oklahoma Unemployment Act of 1936.
The syllabus of Realty Mortgage Sales Co. v. Oklahoma Employment Security Commission, 197 Okla. 303, 169 P.2d 761, is adopted as syllabus herein.
Appeal from District Court, Tulsa County; Leslie Webb, Judge.
Action by the Sears-McCullough Mortgage Company against the Oklahoma Employment Security Commission. Judgment for defendant, and plaintiff appeals. Reversed, with directions.
Geo. B. Schwabe, of Tulsa, for plaintiff in error.
Bruton Wood and Burton Duncan, both of Oklahoma City, for defendant in error.
This is an appeal from a judgment of the district court of Tulsa county affirming an assessment made by the Oklahoma Employment Security Commission against Sears-McCullough Mortgage Company under the provisions of the Oklahoma Employment Security Act. In making the assessment the bOklahoma Employment Security Commission held that certain real estate salesmen were employees of Sears-McCullough Mortgage Company.
Subsequent to the taking of the appeal we decided in Realty Mortgage Sales Co. of Oklahoma Employment Security Commission, 197 Okla. 308, 169 P.2d 761, that salesmen operating under similar conditions were not employees, and that an assessment on that basis could not be sustained.
Since that opinion was handed down the parties to the instant case have filed in this court a stipulation signed by their attorneys of record agreeing that the decision in the instant case is controlled by the rules of law announced in the cited case, and praying that this case be reversed and remanded to the district court of Tulsa county with instructions to enter judgment in favor of plaintiff in error. Examination of the record and brief filed by plaintiff in error discloses that the facts are similar, if not identical, to those involved in the cited case.
The judgment of the district court is, therefore, reversed and the cause remanded, with instructions to enter judgment in favor of plaintiff in error, Sears-McCullough Mortgage Company, upholding its protest against the assessment.
Reversed with directions.
GIBSON, V.C.J., and OSBORN, WELCH, and DAVISON, JJ., concur. HURST, J., concurs by reason of stare decisis.