The opinion
MADDEN, Judge
(dissenting).
I think that the four persons whose status is here in question were employees of the plaintiff, within the meaning of the statutes here involved. They travelled about selling the plaintiff’s product on the plaintiff’s account. They worked under contracts which seem to me to contain the provisions usually found in contracts of travelling sales agents. I find nothing at all in those contracts except the word “licensee” which even tends to indicate any relation except that of agency. Of course, the label which the contract applies to them cannot have any effect upon the legal status created by the contract.
The Government urges the application of the doctrine of National Labor Relations Board v. Hearst Publications, 322 U.S. 111 , 64 S.Ct. 851 , 88 L.Ed. 1170 , that one should look at the purpose of the statute to determine whether or not a person in question is an employee within the meaning of the statute in question. I think that there is no occasion here to resort to that doctrine, as these four persons seem to me to have been employees, or agents, for all the purposes which occur to me. For example, I would have no doubt that if one of them suffered an injury while he was selling the plaintiff’s product, he would have the benefit of the usual workmen’s compensation statute, or that if one of them negligently injured a person on a highway while he was driving his automobile to visit a customer, the plaintiff would be liable as a principal.
The fact that the men used their own vehicles is not of importance. Many employees in the higher skills, such as carpenters, bricklayers and plumbers, use their own tools.
The practice of the plaintiff of refraining from giving directions as to details *272 was, I think, no more than the normal practice with regard to employees of considerable standing and dignity. The contract itself, gave detailed directions as to prompt transmission of orders, advertising methods, the time to be devoted to the work, the intensity of the work, that is, the amount of sales which had to be produced each month, and the furnishing to the plaintiff of daily and weekly reports. In addition, by the necessary implications of the contract, any conduct or method of work harmful to the plaintiff’s interests would have been a breach of contract and a cause for discharge unless, upon request, the method had been changed. I see no lack of authority to direct the details of the work in any regard in which an employer would, ordinarily, desire to direct the details of work such as that here involved. It is said that in fact the plaintiff did not insist upon the performance of the contract as written. That may well have amounted to a waiver, so that the plaintiff could not have discharged the men for breach of contract, but the plaintiff could have, by notice, required the immediate resumption of the agreed practices. I think that a nonexercise of a right of control cannot be regarded as a determining factor. If it could, status would change from time to time and legal rules would be difficult to apply.
If it were necessary to resort to the teaching of the case of National Labor Relations Board v. Hearst Publications, I think that resort should be made. The benefits of the Social Security Act were, for reasons of administration, limited with a good deal of reluctance, to only a part of the population which might, on the basis of similar need for protection, have been covered by it. I think that its present coverage should not be limited by narrow interpretations of its definitions. Here, not only the four men in question, but five others, admittedly working people with all the need for the protection of the Act which any other workmen have, are deprived of the protection of the Act by the Court’s interpretation.
WHALEY, Chief Justice, took no part in the decision in this case.