Carson v. State Indus. Acc. Commission

• Decision Date: 04 February 1936
• Citation: 54 P.2d 109,152 Or. 455
• Parties: CARSON v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

54 P.2d 109

152 Or. 455

CARSON v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

February 4, 1936

Department 1.

Appeal from Circuit Court, Multnomah County; John P. Winter, Judge.

Proceeding under the Workmen's Compensation Act by Maggie M. Carson claimant, for the death of Carter A. Carson, employee opposed by the State Industrial Accident Commission of Oregon. From an order of the State Industrial Accident Commission denying the claim, claimant appealed to the Circuit Court, and from a judgment in favor of defendant Commission, claimant appeals.

Reversed and remanded.

Walter T. McGuirk and Keith A. Caldwell, both of Portland, for appellant.

Miles H. McKey, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., and Victor R. Griggs, Asst. Atty. Gen., on the brief), for respondent.

BELT Justice.

The plaintiff appealed to the circuit court from an order of the State Industrial Accident Commission denying her claim for compensation on account of the death of her husband. The commission rejected the claim on the ground that Carson, at the time of his death, was an officer of a corporation and had never made application under the statute for compensation as a workman. On trial, at the conclusion of the evidence the circuit court directed a verdict in favor of the defendant commission. The plaintiff widow appeals.

The record discloses the following fact situation: Carter A. Carson had been employed since 1924 as a common laborer by L. E. Miesen, who was engaged in the fuel business in the city of Portland. Miesen, in December, 1933, decided to incorporate his business under the name of Miesen Fuel Company. To effect the incorporation it was necessary to have at least three stockholders. Carson consented to the use of his name as one of the incorporators. Concerning such matter, Miesen thus testified: "Q. At the time you first used Mr. Carson's name, did he have any knowledge that you were using his name? A. He did not. That is, I told Mr. Hall I was going to use Mr. Carson's name as one of the directors, and then one morning when Mr. Carson came into the office, I said, 'Carter, I am going to use your name in this corporation I am incorporating, and I want to use your name.' I said, 'It won't cost you anything and it will not benefit you in any way: you won't receive anything for it, but,' I said, 'I need to qualify, and I want to use your name', and he said, 'Well, if it don't cost me anything, why, it is all right."' Eighty shares of stock were issued, each of the par value of $100-78 shares to L. E. Miesen, one share to his wife and one share to Carson. However, Carson paid nothing for the stock, and the certificate was never delivered to him. The corporation records show that Carson was elected secretary and director, although, as a matter of fact, no meeting of the stockholders or directors was ever held. Carson, however, signed the various papers and records of the meeting prepared by the attorney whom Miesen had employed to incorporate the business. Carson exercised no control over the business. His work was in the woodyard, where he assisted other employees in loading trucks. He was paid $25 per week. Regular monthly remittances were made by the employer to the commission on the basis that Carson was a yard laborer. On January 12, 1935, while loading one of these trucks, a crane broke and caused a large box of wood to fall upon Carson, crushing him to death. It is conceded that his death resulted from injuries sustained in the course of his employment.

Under this state of the record, can it be said, as a matter of law, that Carson is an officer of a corporation within the meaning of the Workmen's Compensation Act, and that his widow is precluded from recovering compensation? The able and conscientious trial judge was reluctant to direct a verdict, but felt duty bound, under the statute, to do so. The question is new in this state, and there is slight precedent for our guidance.

In many jurisdictions, when the question was not controlled by statute, the courts have held, under the "dual capacity" doctrine, that if an officer of a corporation at the time of his injury is performing manual labor as an ordinary workman, the Workmen's Compensation Act does not preclude the allowance of compensation. It is the nature and character of the work performed that controls rather than the title of the individual. In other words, it is possible for a person to be an officer of a corporation and still be an employee of the company within the meaning of the act. As stated in 71 C.J. 507: "The majority of the cases adhere to what may be called the dual capacity doctrine; that is, that an officer, director, or stockholder of a corporation will not be denied compensation merely because he is such officer, director, or stockholder if, as a matter of fact, at the time of the injury he is engaged in performing manual labor or the ordinary duties of a workman and receives pay therefor in the capacity of an employee, or if ...