Dewey v. National Tank Maintenance Corp.
| Decision Date | 06 April 1943 |
| Docket Number | 46190. |
| Citation | 8 N.W.2d 593,233 Iowa 58 |
| Parties | DEWEY v. NATIONAL TANK MAINTENANCE CORPORATION et al. |
| Court | Iowa Supreme Court |
Miller, Huebner & Miller, of Des Moines, for appellant.
D Cole McMartin, of Des Moines, for appellee.
Claimant Minnie B. Dewey, alleged in her petition for workmen's compensation that she was employed to do office work and make collections for her employer, the National Tank Maintenance Corporation. She alleged that while engaged in making a collection at the direction of her employer she suffered an injury in an automobile collision. Her employer and its insurance carrier admitted the injury, but denied she was an employee and alleged that the "claimant was a person holding an official position or standing in a representative capacity of the defendant, National Tank Maintenance Corporation; that at the time said injury was sustained the defendant, National Tank Maintenance Corporation, was a corporation organized under the laws of the State of Iowa and at said time, and prior thereto, the claimant held the official position of secretary and member of the board of directors of said corporation."
The deputy industrial commissioner, as sole arbitrator, the industrial commissioner, and the district court found claimant was not holding an official position or standing in a representative capacity of the defendant. The district court reversed that part of the decision of the industrial commissioner awarding claimant compensation for not to exceed 300 weeks and remanded the case to the industrial commission for the purpose of taking further testimony as to the extent of claimant's disability. Claimant has not appealed so we will here consider the single issue raised by the answer as to whether claimant was an employee within the meaning of the workmen's compensation act.
Section 1421 par. 3 provides as follows:
The National Tank Maintenance Corporation is an Iowa corporation with its principal place of business in Des Moines, Iowa. It is engaged in selling service to municipalities in Iowa and adjoining states whereby the corporation undertakes to paint and repair municipal water tanks. Service contracts are negotiated with automatic renewal clauses and with varying prices, depending upon the size, condition and age of the tank. The company maintains a force of men that do the actual repair and maintenance work.
The Articles of Incorporation designate Paul N. Kingsley as president and treasurer and K. L. Kingsley as secretary "until the next annual meeting of the board of directors." No meeting of the board of directors was ever held. The articles further provide that future officers shall be stockholders and elected by the board of directors. No stock was ever issued. K. L. Kingsley, the secretary, and daughter of Paul N. Kingsley, resigned as secretary by written resignation dated February 1, 1938. In the annual corporation reports signed by the president and filed in the office of the Secretary of State, the name of claimant appeared as secretary in the years 1937, 1939 and 1940. Mr. H. R. McMahan was designated as vice-president in the articles of incorporation, but in all later annual reports the president's wife, Dorothly L. Kingsley, was listed as vice-president. The evidence showed that Paul N. Kingsley just considered himself the whole corporation. He testified that he was in direct charge of the corporation; that he made out the corporation reports; that he felt like he was the board of directors; that he selected his own appointees to fill out the panel of officers in the corporation; and at least for the first report he did not even consult the ones he appointed. However, claimant knew her name was included in corporation reports for the evidence showed she typed some of the reports from the pencil notations placed on them by Mr. Kingsley.
The evidence further showed that Minnie B. Dewey first went to work for the corporation in 1936. She took care of the mail and, although she did not take dictation, the president of the corporation and the owner of all the stock, Mr. Kingsley, instructed her what to say in the letters she typed. After about four years her salary was increased and she spent more of her time traveling over Iowa, selling the service to municipalities. Although she and Mr. Kingsley negotiated all of the contracts during the last two years before her injury, the record shows that other salesmen had been employed to negotiate and sell this service during prior years.
Many exhibits were introduced showing her signature upon letters written to the insurance carrier and customers upon a settlement agreement involving a substitution of securities with the insurance carrier, and upon contracts for the company's service. In each instance her signature appeared under the corporation name as secretary. Claimant testified that she signed some of the letters as secretary to Mr. Kingsley, the president, and he did not testify to the contrary. She also testified that she signed the other papers and contracts, in the manner they were signed, upon the instructions of Mr. Kingsley.
Mr. Kingsley testified that he was in direct charge of the corporation; that claimant did most of the office work; that claimant spent time on the territory making collections and selling the service; and that she was paid a commission on her sales in addition to her salary.
There was further testimony to the effect that the salesmen, including claimant, carried a sales manual, furnished by the corporation, containing specific separate items necessary in repairing and maintaining a tank, with a price for each operation. Mrs. Dewey testified she never varied from this price list in selling the service and if there was something unusual that came up in the job, she would consult Mr. Kingsley before quoting a price.
I. Our first inquiry is whether or not claimant held an "official position" with the meaning of section 1421, par. 3(d). Under the record in this case it is clear that claimant was not the secretary of the corporation because she was not designated as secretary in the articles of incorporation and she was not elected to that office in the manner provided in the articles of incorporation. It is also clear that she could not qualify as secretary of the corporation for she held no stock. Claimant therefore held no "official position" with the corporation. It matters not that she signed her name as secretary upon letters, contracts and other papers. We are not dealing with the rights of third persons. We need not examine any of her acts. This action is against the corporation itself. When the corporation defends upon the ground that she held an official position and was therefore not an employee, it was incumbent upon the corporation to prove she was an officer duly elected under the powers granted by the articles of incorporation. The burden is not sustained by proof of selection as secretary by an officer who had no power to select, and proof of a holding out to third persons that she was the secretary of the corporation. In fact all evidence bearing upon the kind of work she did is immaterial. We are here dealing with a status that could only be created in the manner provided for its creation. Upon like reasoning, we decided in the case of Kutil v. Floyd Valley Mfg. Co.,205 Iowa 967, 218 N.W. 613 615, that if the officer's status was created, the performance of work of an ordinary employee by the officer would not make the officer an employee under this statute. There Justice DeGraff used the following pertinent hypothetical case to illustrate this point when he said: With equal force we state that if the janitor or night watchman is called upon to perform the duties of the bank president, he holds no official position, by reason of such...
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