Flynn v. State Compensation Com'r

• Decision Date: 07 February 1956
• Docket Number: No. 10771,10771
• Citation: 141 W.Va. 445,91 S.E.2d 156
• Court: West Virginia Supreme Court
• Parties: Less FLYNN v. STATE COMPENSATION COMMISSIONER and National Steeplejack Company.

Page 156

91 S.E.2d 156

141 W.Va. 445

Less FLYNN v. STATE COMPENSATION COMMISSIONER and National Steeplejack Company.

No. 10771.

Supreme Court of Appeals of West Virginia.

Submitted January 11, 1956.

Decided February 7, 1956.

Syllabus by the Court.

1. A wife who owns and operates a business which is subject to the provisions of the workmen's compensation statute may establish the relationship of employer and employee between her and her husband; and, upon compliance with the other requirements of the statute, a husband who is an employee of his wife in such business is entitled to compensation from the workmen's compensation fund for personal injuries received by him in the course of and resulting from such employment.

2. An order of the Workmen's Compensation Appeal Board, affirming an order of the State Compensation Commissioner, which is not supported by the evidence and, for that reason, is plainly wrong, will be reversed and set aside by this Court.

Chester Lovett, Arthur T. Ciccarello, Charleston, for appellant.

Franklin W. Kern, Harold W. Calhoun, Charleston, for appellee.

HAYMOND, Judge.

The claimant Less Flynn sustained personal injuries when he fell from a structure on which he was working on October 18, 1953. He filed his claim for compensation on November 5, 1953, and on November 23, 1953, the State Compensation Commissioner awarded him total temporary disability benefits of $25 per week. After a hearing, the commissioner, by final order entered May 9, 1955, held the claim to be not compensable on the ground that the claimant, at the time of his injury, was not an employee within the meaning of Section 1, Article 2, Chapter 23, Code, 1931, as amended. By order entered August 15, 1955, the Workmen's Compensation Appeal Board affirmed the order of the commissioner and from the order of the board this Court granted this appeal on September 26, 1955 upon the application of the claimant.

In May 1950 the claimant and Hershel Sublette entered into a written agreement and, as partners, under the name of National Steeplejack Company, engaged in the business of painting and servicing external surfaces of buildings and other structures. This partnership continued until the fall of that year when it was dissolved by the withdrawal of Sublette and the claimant became the owner of the assets of the partnership and operated its business until July 10, 1953. During his ownership and operation of the business the claimant failed to earn a satisfactory profit and on July 10, 1953 his wife, Nancy Flynn, who claims to be its owner since that date, purchased the business from him for the sum of $1,000.00 which she paid to him in cash.

On July 24, 1953, after the sale of the business to Nancy Flynn, an application to become a subscriber to the Workmen's Compensation Fund upon a form designed for use by a corporation was filed in the name of the National Steeplejack Company.

Less Flynn, who is uneducated and unable to read or write except to sign his name, signed the application as president of the National Steeplejack Company. Since this application was filed Nancy Flynn, under her claim to ownership of the business, has paid the premiums to the Workmen's Compensation Fund for the National Steeplejack Company as a subscriber to the fund. The State Compensation Commissioner in some undisclosed manner learned that the National Steeplejack Company was not a corporation and on July 21, 1954, a new application was filed with the commissioner.

On August 2, 1954, the claimant and his wife submitted separate affidavits which together stated that in May, 1953, the claimant and his partner sold all the assets of the National Steeplejack Company to Nancy Flynn for the sum of $1,000.00 which was paid to them by her; that the claimant did not retain any ownership in its business after that date; that Nancy Flynn, since that date, was the sole owner of all its assets, including equipment and vehicles, carried its bank account in her name, kept its books, and paid all the expenses and wages, including the wages paid to the claimant; that she paid all assessments to the Workmen's Compensation Fund; that the claimant, since May 1953, has not been the owner of any interest in the National Steeplejack Company; that since that date he worked only as its employee; that in filing the application in July 1953, the claimant acted at the direction of his wife and as her agent; and that the claimant, being unable to read the application which was completed for him by a person at the office of the commissioner did not know that he had misstated any facts and did not intend to sign any misstatement concerning the National Steeplejack Company. After consideration of the foregoing applications and affidavits, the commissioner, on August 11, 1954, ordered that the claim be set for hearing to determine whether the claimant was an employee within the meaning of the workmen's compensation statute. At the hearing which, after a continuance on September 24, 1954, was held by a trial examiner on November 5, 1954, the claimant and his wife appeared and testified as witnesses. No other testimony was introduced in connection with the claim.

Notwithstanding the relationship of husband and wife between the claimant and Nancy Flynn, the misstatements of the time and the manner of the purchase of the assets of the National Steeplejack Company by Nancy Flynn in May 1953 from the claimant and Hershel Sublette, and the statements in the application filed and signed by the claimant on July 24, 1953, the evidence given by the claimant and his wife, which was not contradicted by any direct testimony, sufficiently shows that prior to July 10, 1953, Sublette withdrew from the partnership which formerly existed between him and the claimant; that the claimant then became the owner of the assets of the partnership; that, as both the claimant and his wife believed that the claimant was incapable of managing the business successfully, his wife on July 10, 1953, purchased all the assets, including equipment and vehicles, for which she paid the claimant the sum of $1,000.00 in cash from funds owned by her; that by the purchase she became the sole owner of the assets of the National Steeplejack Company and as such managed and directed its business transactions after that date; that she financed its operations, kept its books, placed its bank account in her name, signed all checks, and approved and supervised its contracts with other persons for the performance of work and services, including the contract signed by the claimant in behalf of the National...