that the examiner questioned plaintiff to some considerable
extent about apparent discrepancies between her testimony and
certain answers in the questionnaire. Specific reference to the
questionnaire is contained in the examiner's opinion.
Great stress was placed by the Council upon plaintiff's
questionnaire statement that she felt "obligated" to her
brothers. Though this statement might be construed to create an
inference opposed to the existence of an employment relationship,
it might, with equal plausibility, infer only that a sense of
obligation would lead her to choose her brothers as employers
over other persons.
In this context the Court does not presume to weigh the
evidence. It simply stresses the point that, since multiple
inferences may be drawn from that statement, its critical force
relates to the question of plaintiff's credibility.
In the same context of the questionnaires, an argument based
upon absence of control lacks substantiality. The evidence
reveals that none of the brothers knew how to cook or to do the
other routine work of housekeeping, that plaintiff directed her
own time and scheduling of the work which she did, and that she
was directed by her brothers only as to special chores which they
The right to control is a relative thing. A distinction must be
drawn between the degree of control of one engaged in building an
atomic bomb, for example, and one engaged in housekeeping in a
farm home. In the latter case, the command, "Keep house," may be
direction, continuous in force until that command is
countermanded. That seems especially true in a case as this in
which plaintiff was more knowledgeable of the needs than were her
brothers. Plaintiff was engaged in the day-to-day, week-to-week,
repetitious routine of housekeeping. It is not surprising, and
certainly not fatal to her claim, that she employed her own
knowledge and experience to determine what must be done, and the
sequence of its doing.
The Council ignored the fact that plaintiff gave up gainful
employment, upon which she relied for the support of herself and
her child, to work for her brothers. It also ignored plaintiff's
testimony that she considered the offer by her brothers, to
provide all of the necessities for herself and her child, and
education for the child, more remunerative than the impecunious
wage, plus room and board, which she received from her
The hearing examiner expressly discussed and evaluated the
evidentiary facts which the Council stressed. There is no
evidentiary fact which he can be said to have ignored. This court
finds in this record no overriding factual matter to support the
Council's decision and nothing of substantial import to refute
the finding of the examiner that a bona fide employer-employee
relationship existed. The admitted fact that the advent of wages
to plaintiff in 1963 had as a purpose the qualification of
plaintiff for social security benefits does not affect her claim
since a bona fide employment relationship did exist. Rhoads v.
Folsom, 7 Cir., 252 F.2d 377, 380.
The Court is compelled to the conclusion that the decision of
the Council is not supported by substantial evidence. Nothing but
undue verbosity could be achieved by a discussion of the several
cases upon which the Secretary relies.*fn3 Each case must stand
or fall upon its own record, and no number of sibling cases would
have any persuasive virtue unless they presented evidentiary fact
situations identical to this.
The Secretary's motion for summary judgment is denied.
Plaintiff's motion for summary judgment is allowed, and judgment
is entered reversing the decision of the Secretary denying
benefits to plaintiff.