Cosgriff v. Duluth Firemen's Relief Ass'n

• Decision Date: 16 February 1951
• Docket Number: No. 35338,35338
• Citation: 233 Minn. 233,46 N.W.2d 250
• Parties: COSGRIFF v. DULUTH FIREMEN'S RELIEF ASS'N et al.
• Court: Minnesota Supreme Court

Page 250

46 N.W.2d 250

233 Minn. 233

COSGRIFF v. DULUTH FIREMEN'S RELIEF ASS'N et al.

No. 35338.

Supreme Court of Minnesota.

Feb. 16, 1951.

Syllabus by the Court.

1. By virtue of M.S.A. § 176.01, subd. 8(3), enacted in 1947, the definition of Employe under the workmen's compensation act has been extended to include 'Every executive officer of a corporation.' Section 176.01, subd. 17, defines Executive officer as 'any officer of a corporation elected or appointed in accordance with its charter and by-laws.'

2. M.S.A. § 69.30 directs that the management of the affairs of a firemen's relief association, such as employer here, shall be by a board of trustees elected as prescribed in its articles of incorporation. The status of a trustee of such an association is the same as a director of a private business corporation, and the laws applicable to the status, rights, and obligations of the latter ordinarily are likewise applicable to such a trustee.

3. Under § 176.01, subds. 8(3) and 17, extending the term Employe to 'any officer of a corporation elected or appointed in accordance with its charter and by-laws' (italics supplied), Held that a trustee of a firemen's relief association such as employer here is within the term Executive officer as set forth in § 176.01, subd. 8(3), and hence covered by the workmen's compensation act while performing services for such association.

4. Where trustee of Duluth Firemen's Relief Association, which was organized under M.S.A. c. 69, sustained injuries and disability as the result of an accident which took place while he was returning from a special meeting which he had been instructed by the association to attend, Held that such injuries and disabilities were the result of an accident arising out of and in the course of his employment, and hence were covered by the workmen's compensation act.

5. Where, pursuant to an agreement, employe was to receive the sum of $10 per day, out of which he was to pay for his board and lodging while on a special mission for his employer, Held, under § 176.01, subd. 14, that this sum constituted his daily wage as a basis for computing compensation due under the act.

Harry T. Lathrop, Duluth, for relator.

Nye, Montague, Sullivan, Atmore & McMillan and Richard Hastings, Duluth, for respondents.

THOMAS GALLAGHER, Justice.

Certiorari to review an order of the industrial commission made June 2, 1950, denying employe compensation for disability and medical and surgical expenses, on the ground that he was not an employe of respondent Duluth Firemen's Relief Association on April 23, 1948, when he sustained injuries as the result of an airplane accident.

The Duluth Firemen's Relief Association was organized under M.S.A. c. 69 for the purpose of providing relief for sick, injured, and disabled members of the Duluth fire department, who are also members of the association. Article III, § 1, of its articles specifies that its management and the control of its funds shall be vested in a board of trustees. The employe here, a member of the fire department of Duluth, was a member and a duly elected trustee of the association at the time of the accident.

It had been customary for some years prior to the accident for representatives of the association to meet each year with representatives of the Minneapolis Firemen's Relief Association and the St. Paul Firemen's Relief Association to discuss common problems and to plan actions deemed to be of benefit to the associations. Such a meeting was scheduled for St. Paul on April 22, 1948. At a meeting of the Duluth association held April 7, 1948, the following resolution was adopted: 'Communication from St. Paul Association read. Moved and seconded that we send five men to St. Paul Tri-City Meeting April 22nd. Carried.'

Pursuant thereto, the president of the association selected five men, including Cosgriff, to attend the St. Paul meeting.

The evidence established that the men selected to attend such meeting pursuant to agreement were compensated for the trip at the rate of $10 per day for three days, plus railroad expenses, although the mode of transportation was left to the decision of the selected representatives. The employe and D. E. Leonard, secretary of the association, also selected to attend the St. Paul meeting, determined to travel to and from the meeting by air and rented an airplane for that purpose. They left Duluth on April 22, 1948, arrived in St. Paul, and attended the meeting there on that date. On the following day at 11 a.m., they commenced the return trip to Duluth with their rented plane. On this flight, at about 12:30 p.m., the plane crashed while making an emergency landing near Kerrick, south of Duluth, resulting in the injuries for which these proceedings were instituted. It is not disputed that, while on the dates mentioned Cosgriff was a regular employe of the Duluth fire department, he made the trip to St. Paul, attended the meeting there, and returned to Duluth on his own time.

The association, at the times mentioned, had in effect with the Zurich General Accident & Liability Insurance Company, its insurer, a workmen's compensation policy covering all its employes. The association operates on a cooperative basis and employs no full-time workers. Employes who handle its affairs usually contribute their time and effort without compensation, with the exception of its secretary and treasurer. The allowance of $10 a day for employe here was intended to cover his food, lodging, and incidental expenses while in St. Paul at the meeting.

Neither the articles nor bylaws of the association prescribe the duties of the trustees, nor is there anything therein which requires their attendance at meetings such as the St. Paul meeting above described. The resolution of April 7, 1948, did not specify that the representatives to be selected by the president to attend the St. Paul meeting should be chosen from the trustees. It does not appear whether or not Mr. Leonard, secretary of the association and one of the representatives selected to attend the St. Paul meeting, was such a trustee at the time.

It is the position of the insurer that a Trustee of the association is not an Employe thereof within the act, nor, in particular, an executive officer thereof so as to come within M.S.A. § 176.01, subd. 8(3), which extended the term Employe to include 'Every executive officer of a corporation.'

In the proceedings before the commission, the referee found in favor of employe and made allowances for temporary total and permanent partial disability, as well as for medical and hospital care and attention, offset by a specified amount received by the employe in third-party litigation. On appeal to the commission, the referee's findings and determination were reversed, the commission holding that the relationship of employer and employe did not exist between the employe and the Duluth Firemen's Relief Association at the time of the accident.

1. As defined in § 176.01, subd. 8(2), of the compensation act, the term 'employe' includes 'Every person in service of another under any contract of hire, expressed or implied, oral or written * * *.' By L.1947, c. 197, § 1, subd. 8 was amended by adding paragraph (3), whereby the definition of 'employe' was enlarged to include 'Every executive officer of a corporation.' An executive officer is defined in § 176.01, subd. 17, as 'any officer of a corporation elected or appointed in accordance with its charter and by-laws.' Prior to the enactment of subd. 8(3), the workmen's compensation act had not covered executive officers while performing their duties as such, Bendix v. The Bendix Co., 217 Minn. 439, 14 N.W.2d 464; Benson v. Hygienic Artificial Ice Co., 198 Minn. 250, 269 N.W. 460; Erickson v. Erickson Furniture Co., 179 Minn. 304, 229 N.W. 101; Donaldson v. William H. B. Donaldson Co., 176 Minn. 422, 223 N.W. 772, although this court repeatedly had held that a corporate officer was entitled to the benefits of the act...