For the prosecutors, Ralph N. Kellam.
For the respondents, Clarence F. McGovern.
Before Justices Bodine, Perskie and Porter.
The opinion of the court was delivered by
PORTER, J. The question for our determination is whether or not Fred W. DeWitt was employed by the prosecutor within the meaning of the Unemployment Compensation Law (N.J.S.A. 43:21-19, sub. i, 6). The prosecutors are engaged in various branches of insurance. They are closely associated and operate in many places by maintaining joint offices with the same superintendent in charge for both companies and with agents usually likewise representing both companies. It appears that DeWitt represented both companies. He was employed to make collections of premiums due from certain policy holders located within an area consisting of several municipalities within this state and to sell insurance to any one he could within that area. He was paid for his services in making the collections a certain percentage of the amount collected and was paid a stated amount for new business obtained. He was obliged to report to prosecutors periodically and to account for his collections. He was authorized in rendering his accounts to deduct from his collections the amount due him for his remuneration. He was prohibited from engaging in any work competitive with or prejudicial to the interest of prosecutors but was otherwise free to engage
in other work. He was free to arrange his route, means of transportation, hours of work, and means and methods of obtaining new business. Prosecutors furnished him with advertising matter and an account book. The services were terminable by either side upon notice or by the employer if the contract be breached by claimant. In this case the prosecutors terminated the connection claiming a breach of the contract by DeWitt in that he did not account for all collections made. His connection with the prosecutor covered a period of slightly over a year.
DeWitt made claim for benefits under the statute, supra, based upon his contention that he had been employed by both companies as an agent soliciting business and making collections in charge of a so-called "debit" of about 300 accounts.
The appeal tribunal of the Unemployment Commission of this state concluded that the claimant was an employee of the prosecutors and was therefore entitled to the unemployment compensation as provided by the statute. An appeal by the prosecutors to the Board of Review of the said Commission resulted in an affirmance. The writs of certiorari review that finding.
The statute, supra, uses the word employment as meaning an individual who performs services for remuneration except those that fall within three classes, as follows (sub. i, 6 of N.J.S.A. 43:21-19): "(A) such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and (B) such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and (C) such individual is customarily engaged in an independently established trade, occupation, profession or business."
We think that the proofs established that the claimant was employed by prosecutors and that the nature and conditions of his employment and the services performed do not come within any of the stated exceptions. He was under the ...