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Gaskin v. Wayland

Supreme Court of Arizona

May 1, 1944

HARRY O. GASKIN and WILLIAM P. BRADLEY, Doing Business as MERCHANTS' POLICE PATROL, Appellants,
v.
W. R. WAYLAND, JOSEPH P. CONDREY and I. A. McCABE, as Members of and Constituting the ARIZONA UNEMPLOYMENT COMPENSATION COMMISSION, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr. George D. Locke, for Appellants.

Mr. Arthur M. Davis, for Appellees.

OPINION

[61 Ariz. 292] DE CONCINI, Superior Judge.

From a judgment in favor of the Commission, the defendants Gaskin and Bradley appeal.

This case was submitted to the lower court on an agreed statement of facts. Briefly, they are as follows:

The appellants here, defendants below, were in the business of policing certain merchants' property in Phoenix, Arizona. A contract of hire was entered into between appellants and the City of Phoenix and another contract between appellants and their patrolmen.

The plaintiffs, the appellees here, brought suit for taxes accrued on the salaries, wages or payments that were paid to the appellants' patrolmen under Chapter 56, Art. 10, of Arizona Code Annotated 1939.

With the adoption of the Employment Security Act of 1941, this provision was transferred from Sec. 56-1019, Arizona Code Annotated 1939, to Sec. 56-1002 and the language changed by the addition of the phrases hereinafter underlined so that such provision now reads as follows:

Section 56-1002 (i) (5) "Services performed by an individual for wages or under any contract of hire [61 Ariz. 293] shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the commission that:

"(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 hire 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 of the same nature as that ...


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