In re Raynes

Caldwell, J. — The material facts as certified by the board are in substance as follows: On December 25, 1916, and for several years prior thereto the Staats-Raynes Company was a merchandising corporation organized with a capital stock of $15,000. It was engaged in the sale of merchandise, including — 323 — hardware, jewelry and miners’ supplies, at Clinton, Vermillion county. There were hut three stockholders, Bert F. Baynes being one of them. The stocks holders constituted the board of directors. On said day, and for several years prior thereto, Bert F. Baynes was secretary-treasurer of the company and, in addition to performing the regular duties of that office, he served also as buyer for the company, as a salesman in the store, and as collector of its accounts. The company paid him for his services $50 per week. Prior to said date many of the customers of the company who had resided in and near Clinton had removed to Terre Haute and West Terre Haute, leaving unpaid accounts for goods purchased by them of the company. For some time prior to December 25, 1916, Bert F. Baynes had been in the habit of making occasional trips to Terre Haute and West Terre Haute for the purpose of collecting moneys due from such persons to the company upon their said accounts, which trips were made at the expense of the company, in the sense that it paid the transportation charges. On such prior trips he had learned that many of such debtors of the company frequented the lobby of the Terre Haute Hotel and the bar thereof. At two o’clock p. m. on December 25, 1916, he took ten or more statements of accounts of such persons and went to Terre Haute by interurban, for the purpose of collecting such accounts. Arriving in Terre Haute, he went directly to the lobby of the Terre Haute Hotel, and to the bar thereof, which was open. From three o’clock until six o’clock he remained in and about the lobby and barroom of the hotel, except a short period of time during which he went to Wejst Terre Haute, a distance of two miles, to see a person owing one of the accounts he had — 324 — taken with him. Not finding such person at home, he immediately returned to the Terre Haute Hotel. Between three o’clock and six o’clock p. m. of that day he saw in the lobby of the hotel and in the barroom thereof several of the persons whose accounts he had taken with him to said city for collection, interviewed such persons and endeavored to make collections from them. Within such time he also interviewed an attorney in the barroom relative to placing the accounts in his hands for collection. After six o’clock he left the hotel, got his supper at some point which he claims he does not remember, and thereafter and between six o’clock and eleven o’clock p. m. he visited the Elks Club, another hotel, and also spent a portion of such time in the lobby and barroom of the Terre Haute Hotel. He claims that he does not remember what other places he visited within such time. While in Terre Haute on this occasion he drank several glasses of beer. The last interurban car leaving Terre Haute for Clinton on said date left Terre Haute at eleven o’clock p. m. Soon after that hour he discovered that the last interurban had departed for Clinton, and he then made arrangements with a taxicab driver to drive him by automobile to Clinton. In such automobile he left the Terre Haute. Hotel about 11:30 o ’clock. The driver proceeded north a short distance, and then stopped at a garage to get some .gasoline. Bert F. Baynes thereupon got out of the. automobile into the street for the purpose of permitting the driver to alight therefrom. Immediately after he stepped into the street, and while standing about three feet from the automobile in which he had been riding, he was struck by an automobile driven by a third party, and as a consequence he was severely injured, his — 325 — injuries being permanent, and resulting in total disability for six months. On the facts, the board seeks the opinion of this court on three questions of law, in substance as follows: Assuming that Bert F. Baynes was an employe of the company within the meaning of the Workmen’s Compensation Act: (1) Did the accident resulting in the injury occur in the course of his employment? (2) Did the accident arise out of his employment? (3) Upon the facts was Bert F. Baynes at the time of his injury an employe of the company within the meaning of the Workmen’s Compensation Act? 1. 2. As bearing on the first and second questions, the certified statement obtains a number of evidentiary facts from which the board has not deduced the ultimate facts essential to a direct answer to these questions. There is a statement that on the occasion involved here Bert F. Baynes went to Terre Haute for the purpose of collecting accounts due the company.' This statement is an ultimate fact. If to collect such accounts was his exclusive purpose, then in going to Terre Haute he was discharging the duties of his employment. Perhaps the same conclusion would follow if such was his principal purpose. If, however, he was moved by other purposes which he carried out, the collecting of accounts being a mere incident, then we do not believe that it can be said that he was engaged in discharging the duties of his employment. The facts stated respecting his subsequent movements in visiting hotels, barrooms, clubs and unremembered places are for the most part but evidentiary of important ultimate facts not deduced or — 326 — certified. In such, subsequent movements was he actuated by a purpose to serve his employer, and was he devoting.his time and efforts to that end, or chiefly to that end, or was he in the main merely seeking his own pleasure in whiling away a holiday afternoon, with a secondary object of collecting accounts if he might conveniently do so without materially detracting from the pleasure of the occasion? If he went to Terre Haute to further the interests of his employer, did he subsequently lose sight of such object that he might become the devotee of conviviality? What caused him to miss the last car, and what gave rise to the necessity of his endeavoring to procure 'transportation from Terre. Haute in a taxicab? Did he miss the car and did such necessity arise because he had been diligently enga^dj in his employer’s business, and because he was unable to complete such business before the last car left, or was it because.the sociabilities of the occasion caused bim to become oblivious to lapsing time and passing events? These are questions of ultimate fact which it is the province of the board rather than this court to deduce. In the one case, it is our judgment that the accident arose out of and in the course of the employment. The following have a bearing: In re Harraden (1917), ante 298, 118 N. E. 142; Pierce v. Provident Clothing, etc., Co. (1911), 4 B. W. C. C. 242; M’Neice v. Singer Seiving Machine Co. (1910), 4 B. W. C. C. 351; Kunze v. Detroit Shade Tree Co. (1916), 192 Mich. 435, 158 N. W. 851, L. R. A. 1917A 252; Mahowald v. Thompson-Starrett Co. (1916), 134 Minn. 113, 158 N. W. 913, 159 N. W. 565; Miller v. Taylor (1916), 173 App. Div. 865, 159 N. Y. Supp. 999; Friebel v. Chicago City R. Co. (1917), 280 Ill. — 327 — 76, 117 N. E. 467; White v. Avery (1915), 53 Scot. L. R. 122; Putnam v. Murray (1916), 174 App. Div. 720, 160 N. Y. Supp. 810. In the other case our judgment is otherwise. The following are instructive: Inland Steel Co. v. Lambert (1917), ante 246, 118 N. E. 162; Hewitt’s Case (1916), 225 Mass. 1, 113 N. E. 572, L. R. A. 1917B 249; Smith v. Lancaster, etc., Ry. (1899), 1 Q. B. 141; Ocean Accident, etc., Co. v. Industrial Accident Comm. (1916), 173 Cal. 313, 159 Pac. 1041, L. R. A. 1917B 336; M’Lean v. Macbrayne (1916), 53 Scot. L. R. 254. We proceed to the third question: An examination of the Workmen’s Compensation Act (Acts 1915 p. 392), including the title, discloses that the beneficiaries of its provisions are designated without exception as employes. The first section, however, is to the effect that the act shall be known as “The Workmen’s Compensation Act.” The word “employe” is a term of broad significance. Its definitions take a wide range. Among those set out in 15 Cyc 1031, are the following: A person who is engaged in the service of another; one whose time and skill are occupied in the business of his employer; a laborer when engaged in service under a contract for compensation. In Palmer v. VanSantvoord (1897), 153 N. Y. 612, 47 N. E. 915, 38 L. R. A. 402, the court in holding that one employed at a salary of $100 per month to go from place to place to fix and set up machines, and pack and unpack them, as well as to make sales, was an employe within the meaning of a statute that gave a preference to wage claims of employes, operators and laborers of corporations, quoted with approval the Century Dictionary definition as follows: “One who works for an employer; a person working for salary or wages; — 328 — applied to any one so working, bnt usually only to clerks, workmen, laborers, etc., and but rarely to tbe higher officers of a government or corporation or to domestic servants.” The question here, however, involves the meaning of the term “employe” as used in the act. Its scope is outlined therein as follows:, “ ‘Employe’ shall include every person, including a minor, in the service of another under any contract of hire or apprenticeship,” etc., with exceptions not applicable here. §76. This language literally interpreted is also rather broad, but perhaps is modified somewhat by other provisions of the act. Thus as we have said, the act is designated as the Workmen’s Compensation Act. The term “workman” is also somewhat comprehensive. A workman is defined as a man employed in labor; a worker; a skilful artificer or laborer; a man who is employed in manual labor whether skilled or unskilled; a toiler; a mechanic; an artisan, etc. 40 Cyc 2860. Popularly the term includes those who work with their hands at some sort of manual labor, but excludes those who do mental work merely. Of course, we should not be understood as indicating that only those who do manual labor come within the provisions of the act, but rather that the conception usually formed in the mind by the use of the term “workman” is of a person that does that sort of work. There are other provisions of the act that in a general way indicate its beneficiaries. Thus by §16 it is provided that compensation granted by the act shall have the same preference or priority against the assets of the employer as is allowed by law for any unpaid wages for labor. An inspection of the laws referred to, as §7976 et seq. Burns 1914, Acts 1885 p. 95, discloses that persons who work at manual labor compose by — 329 — far the greater part of the persons intended thereby to be protected. A superintendent, however, em: ployed at a salary of $100 per month, whose principal duty was the supervision of work done by laborers, was held to be included within the provisions of the act last mentioned. Pendergast v. Yandes (1890), 124 Ind. 159, 24 N. E. 724, 8 L. R. A. 849. By the terms of §52 of the Workmen’s Compensation Act, supra, the State Board of Inspection was abolished, and its duties transferred to the Industrial Board. This body also when in existence dealt for the most part with those who performed manual labor, and the relation of such persons to their work and their employers. §8021 et seq. Burns 1914, Acts 1911 p. 145. By the provisions of the act, supra, compensation is awarded on a basis of a certain per cent, of what is designated as the “average weekly wages” rather than salary of the workman involved, and as a rule is required to be made in weekly payments rather than in a lump sum. In case of the decease of an employe, compensation is awarded to his dependents. Where the family relation actually exists, the wife and also the children within a certain age are conclusively presumed to be wholly dependent, and under some circumstances the husband also, where the deceased employe was a wife. §38. It is provided also that ’in computing compensation, the average weekly wages of the employe should be considered as not exceeding $24. §40. 3. Prom this brief examination of the act, supra, it is not a very hard problem to determine in a general way the sort of employes intended to become its beneficiaries, although difficulties may present themselves in applying the general standard to the individual case. In a general way, it is — 330 — an employe whose remuneration is popularly designated as wages rather than salary; whose compensation for service is not munificent; who may reasonably be presumed to be dependent on his wages for the sustenance of himself and family, and whose wife and young children may • reasonably be presumed without proof to be dependent on him for support; whose labor is manual, or of a like degree of industrial or commercial importance as manual labor when viewed from the standpoint of individual accomplishment. We should not be understood as indicating that any of these tests are decisive, or that one .whose earnings are designated as salary, or one who does not in fact depend on his wage, or- whose wife and children are not in fact dependent on him for support, or whose wage is materially more than $24 per week, or whose labor is other than manual, is not entitled to compensation under the act. We are merely formulating a concept in a general way of the sort of person that may be deemed to be an employe within the meaning of the act. Measuring the case of Burt F. Baynes by these general observations, we find nothing in the certified facts, aside from the element that he was a corporate officer, which we shall later consider, to exclude him from the class designated in the act as employes. Does the mere fact that he was an officer of the corporation exclude him? In 1 Honnold, Workmen’s Compensation 173, occurs the statement that, as a general rule, the fact that one is an officer or director of the corporation employing him will not preclude him from being deemed an employe within the meaning of compensation acts. The author cites in support of the statement the rulings of certain industrial boards, includ — 331 — ing a ruling made by tbe Industrial Commission of New York in Bowne v. S. W. Bowne Co. Such ruling was subsequently sustained in tbe Appellate Division of tbe Supreme Court (173 App. Div. 131, 162 N. Y. Supp. 244), but was reversed by tbe Court of Appeals. (221 N. Y. 28, 116 N. E. 364). Tbe facts were as follows: Tbe corporation was capitalized at $80,000, of wbicb tbe president, wbo was tbe claimant, owned $56,000. He was injured while assisting certain employes in removing lumber. His salary was $70 per week. He superintended tbe various activities of tbe plant, and at times assisted in manual labor. His stock yielded bim dividends for tbe previous year amounting to $30,000. We believe tbat that case was correctly decided by tbe Court of Appeals, and tbat it did not appear tbat tbe claimant was sucb an employe as is entitled to compensation under tbe New York Act. Tbe decision in Beckmann v. Oelerich & Son (1916), 171 App. Div. 353, 160 N. Y. Supp. 791, is indicated by tbe following quoted therefrom: “As to tbe claim tbat tbe claimant was not an employe within tbe meaning of tbe act. The claimant spoke of bis compensation for services as salary. He was tbe owner of seven of tbe 100 shares of stock of tbe corporation. There is no claim tbat tbe payments received by bim were dividends upon bis stock. Tbe commission found tbat tbe weekly payment made bim was bis weekly wage: Its finding was fully justified by tbe evidence. While be was vice-president of tbe corporation bis employment was doubtless through •the board of directors, of whom be may or may not have been one. Although be was the general foreman, be worked in tbe various industries of tbe corporation tbe same as other workmen, and was doing — 332 — the work of an ordinary employe at the time he was injured. His being vice-president and a stockholder in no way affected his status as an employe.” See, also, Carswell v. Sharpe (1910), 3 B. W. C. C. 552, which bears somewhat on the question. 4. 5. It appears to ns as sound that compensation under workmen’s compensation acts cannot be denied one simply because he happens to be the president or other executive or managing officer of the corporation that employs him, and that that fact alone is not sufficient to eliminate him from among those regarded as employes within the meaning of such acts. If the corporation is great and powerful, with extensive financial resources; if an official is a large stockholder and his time is occupied in the discharge of the- usual duties of his office and his salary is fixed because of the discharge of such duties, it would seem apparent that he could not be regarded as an employe under such an act. But in another corporation of humbler proportions such an official might serve in a dual capacity; that is, as an officer and also as a workman. It is not unreasonable to conceive of a case where the discharge of the official duties would constitute but a small portion of the services rendered by him to the corporation. Such an officer might be hired in fact to perform manual labor in connection with other employes, and his time in the main be occupied in performing such service and regular wages paid him accordingly. Such an official in his capacity as a workman might measure up in all respects to the conception of an employe within the meaning of the act as we' have hereinbefore developed it, and in such capacity we believe that he should be regarded as an employe within the meaning of compensation acts. — 333 — We find nothing in the facts here inconsistent with regarding Burt F. Baynes as such an employe. The question of what constitutes an employe under the act is a law question. However, having thus outlined the law as we conceive it to be, we regard the question as to whether the claimant here is such an employe as one of fact for the board, and we so answer the third question. Note. — Reported in 118 N. E. 387. Workmen’s compensation: who are “employes” within meaning of act, L. R. A. .1916A 115, 246, Ann. Oas. 1913C 28, 1916B 793, 1918B 704. See also note ante 261.