the determination of the question. A good statement of the law defining employee-employer relationship appears in Whalen v. Harrison, D.C., 51 F.Supp. 515, at page 516 where Judge Sullivan said:
'Generally the relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor, and not an employee.' (Emphasis supplied.)
The above quoted language was taken by Judge Sullivan from the footnote of United States v. Silk, 331 U.S. 704, at page 714, 67 S. Ct. 1463, 91 L. Ed. 1757. In this case the Supreme Court stressed the point that interpretation of the word employee must be in the light of the particular act of Congress involved and the social evils attempted to be remedied by that particular piece of legislation.
See also Ridge Country Club v. United States, 7 Cir., 135 F.2d 718, where a golf professional at a country club was held to be an independent contractor.
And as Judge Drewen, in Russell v. Torch Club, 26 N.J.Super. 75, at page 78, 97 A.2d 196, 198, said:
'The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done.'
So much for the law to be applied by the Referee. Next, did plaintiff have a fair opportunity for a hearing? Treating this briefly, the record discloses that after notice plaintiff had a hearing by the Referee in his own home city (Atlantic City), at which time plaintiff was interrogated not only by the Referee but also by his own counsel who was present and participated. Plaintiff also offered a great number of exhibits which were admitted into the record. Thereafter the Referee took the depositions of the corporation's president at Pittsburgh, Pennsylvania, because that was closer to the corporation's location. Notice of this hearing, together with a notice of plaintiff's right to attend, were given to plaintiff and his counsel, though they did not attend. Thereafter plaintiff and his counsel were given opportunity to examine the depositions of the corporation's president and as a consequence plaintiff submitted an affidavit in rebuttal.
Now for the question, was there substantial evidence to warrant the conclusions of the Referee?
The record discloses that the depositions of the plaintiff taken July 27, 1951 comprise thirty-nine pages of the transcript. In addition plaintiff offered Exhibits A to Z and AA to DD. The record discloses that the depositions of the corporation's president comprise twenty-one pages and seven exhibits. The views as to the facts and conclusions as expressed by this testimony were diametrically opposed to each other. Likewise, with the affidavit in rebuttal of four pages. The opinion of the Referee, found at page eight of the transcript, consists of seven pages single space typing. It might be necessary, for some, to here copy the entire opinion but in the writer's opinion the few following paragraphs will suffice to show that there was substantial evidence to warrant the Referee's findings.
'Because the once amicable relationship between the claimant and the executive of the Company has degenerated into a conflict, the evidence in this case is conflicting. Such a situation forcibly introduces into adjudication the element of credibility. In this respect, viewing the evidence in whole, the referee puts stronger reliance in the evidence produced by the Company.'
'The agreement between the Company and the claimant, called by claimant an 'employment' contract impresses the referee as being no more than a contract giving to claimant the full privilege of handling all the sales of the Company's lathes, including sales promotion, for a period of three years subject to mutual agreement as to prices and terms; final approval and acceptance of orders naturally resting with the Company. The Company agreed to provide claimant with office space, certain services and facilities and to assume certain relatively minor incidental expenses. Claimant agreed to devote his entire time. The contract could not be terminated at the will of either party, but only by mutual agreement. Hence, the Company held no right of discharge. In the judgment of this referee, such agreement in and of itself gave no right to the Company to control and direct the services of the claimant in degree sufficient to establish an employer-employee relationship, and I so find'.
'The testimony of the Company's president is that the Company's interest was in the accomplishment of the result toward which the contract was aimed, namely the sale of lathes at prices that would protect the Company and to acceptable customers under acceptable conditions. Claimant was a free agent in meeting these cardinal principles applicable to any business. Where, when and how he accomplished these objectives was clearly not directed, closely supervised, restricted nor controlled in actual practice as would be exercised in an employment relationship, and I further so find.'
It is, therefore, the opinion of the Court that:
(a) The plaintiff had a full and fair hearing by the Referee.
(b) There was substantial evidence to warrant the Referee finding as he did.
(c) The Referee made a correct application of the law to the facts of the case.
Consequently, the position of the defendant is well taken and defendant will have a summary judgment. Prepare an order.