Appeal from the Circuit Court of Kane County, Sixteenth
Judicial Circuit; the Hon. CHARLES G. SEIDEL, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
These are appeals from judgment orders in consolidated Administrative Review Actions affirming the decision of the Director of Labor of the State of Illinois that Margaret Stover, an organist, was an employee of the plaintiffs under the Unemployment Compensation Act of Illinois.
The case requires construction of sections 206 and 212 of the Unemployment Compensation Act, defining "Employment." Section 206 provides, as material here, as follows:
". . . `employment' means . . . any service after June 30, 1940 performed by an individual for an employing unit . . ." (Ill Rev Stats 1965, c 48, § 316.)
Section 212 of the Act is as follows:
"Service performed by an individual for an employing unit, whether or not such individual employs others in connection with the performance of such services, shall be deemed to be employment unless and until it is proven in any proceeding where such issue is involved 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 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 engaged in an independently established trade, occupation, profession, or business." (Ill Rev Stats 1965, c 48, § 322.)
No question is raised on the pleadings, and the following facts are undisputed.
During the period from January 1, 1959, through February 28, 1961, and for some time prior thereto, plaintiff Donald Yurs was engaged, as sole proprietor, in operating funeral homes. Within the period named, Yurs had three full-time employees. In addition, a Margaret Stover played the organ in Yurs' funeral home within 26 calendar weeks in the year 1958, within 40 calendar weeks in the year 1959, and within 34 calendar weeks in the year 1960. The January 1, 1959, beginning date for the determination and assessment against Yurs as an individual is explained by the Director's compliance with the four-year limitation period on such actions provided by section 2207 of the Unemployment Compensation Act. (Ill Rev Stats 1965, c 48, § 687.)
Effective March 1, 1961, the funeral home business was incorporated as Yurs Funeral Home, Incorporated, and continued to operate on the same basis as it had formerly. As an employer subject to the Unemployment Compensation Act, Yurs Funeral Home, Incorporated, paid contributions on the wages of its admitted employees which did not include amounts paid to the organist. The determination and assessment against the corporation is for amounts paid the organist and is in this sense "supplemental" to those reported by the corporation. Both cases thus are concerned with an identical basic issue which accounts for their consolidation.
The organist began playing in Yurs' funeral home about 1950. At that time pursuant to an understanding between Yurs and the organist, she would be available to play providing she had no prior engagement which could not be cancelled. When the organist had a previous engagement, Yurs called on another organist. The arrangement between Yurs and the organist required the latter to begin playing fifteen minutes before services. This period of background music might be reduced to as little as five minutes, depending upon the rate at which callers assembled. The organist was expected to be on time, and she was never late for a funeral. There were fifteen or twenty hymns appropriate for this preliminary music.
At times, but not always, the type of music to be played would be discussed by Yurs and the organist; if the family had a request, this was passed on to the organist by Yurs. The organist was never contacted by a family member or customer. On rare occasions there would be such a contact by a singer. The organist's playing followed a routine pattern which was subject to variations according to religious beliefs, or selections and playing intervals specified by a minister. The minister's requests were also relayed to the organist by Yurs. The organist was not directed by Yurs as to how to play the organ.
The organist was required to play selections preferred by the family as directed by plaintiffs. This was true also of selections preferred by a minister and playing interludes requested by him. She played where directed, that is, in plaintiffs' place of business or in a church. The ceremonial pattern of funeral services was determined by plaintiffs. ...