300 N.Y. 652 (1950)

In the Matter of the Claim of Mabel G. Gordon, Claimant, v. New York Life Insurance Company et al., Respondents. Workmen's Compensation Board, Appellant.

Court of Appeals of the State of New York.

Decided February 23, 1950

Attorney(s) appearing for the Case

Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen's Compensation Board, appellant.

Theodore A. Viehe for claimant.

Horace C. Winch, Franklin D. L. Stowe, Percy R. Smith and Robert J. Hodgson for respondents.

LOUGHRAN, Ch. J., LEWIS, CONWAY and DYE, JJ., concur in Per Curiam opinion; DESMOND, J., dissents in opinion in which FULD and FROESSEL, JJ., concur.

Per Curiam.

We find in this record evidence from which conflicting inferences might reasonably be drawn as to whether, at the time of the accident, the claimant was an employee of the New York Life Insurance Company. In those circumstances we cannot rule as a matter of law, as has the Appellate Division, that the claimant was an independent contractor. "When conflicting inferences are possible, the finding of the Board prevails." (Matter of Glielmi v. Netherland Dairy Co., 254 N.Y. 60, 64; Workmen's Compensation Law, § 20.)

The order of the Appellate Division should be reversed and the award of the Workmen's Compensation Board confirmed, with costs in this court and in the Appellate Division.

DESMOND, J. (dissenting).

As I see this record, there is plenty of evidence that the parties intended that claimant should not be an employee of respondent, and no evidence at all of any such control by respondent of the method and details of doing the work as would permit a finding that claimant was respondent's employee (see Matter of Wilson Sullivan Co., 289 N.Y. 110, 112, citing Matter of Beach v. Velzy, 238 N.Y. 100). In the Wilson Sullivan case (supra), which arose under the Unemployment Insurance Law (Labor Law, art. 18), the question was the same as here, that is as to whether certain real estate salesmen for the Sullivan Company were employees. In that case this court held as matter of law that the real estate salesmen were not employees, although the words "employer", "employed" and "employing" were used a number of times in the statute pursuant to which these real estate salesmen were licensed by the State. There are quite striking similarities of fact between the Sullivan case and this one, and it seems to me that the Sullivan case, if anything, was a stronger one for finding an employer-employee relationship, since, as pointed out in the majority opinion in the Sullivan case, the corporation was quite active in giving assistance to its salesmen, such as furnishing, at the corporation's expense, office and desk space and telephone service, and providing them leads, that is, names of prospects. In the present case claimant, after a short period of instruction, was very much on her own, found her own prospects, worked when she pleased and anywhere in the territory of the particular district office. In other words, after her preliminary training, she just went out and attempted to sell life insurance anywhere she could, with no compensation except commissions for policies actually written. While respondent conducted a meeting of its agents every week, claimant was not required to attend, and there was no evidence at all that respondent in any way controlled or supervised claimant's methods of work or paid any attention to them.

Since these people provided, by a plain, clear contract, that their relationship should not be that of employer and employee, it seems to me, as it seemed to the majority of the court in the Wilson Sullivan case (supra), that this claim cannot be allowed unless we are to say that an insurance company cannot have anything but an employer-employee relationship with its soliciting agents or, in other words, as Judge FINCH put it in the Wilson Sullivan case (supra), "that the recognized common law relationship of independent contractor has been outlawed by the statute" (289 N. Y. at p. 115).

I favor affirmance.

Order reversed, etc. [See 300 N.Y. 742, 301 N.Y. 570.]


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