Gassaway v. Gassaway & Owen

• Decision Date: 07 January 1942
• Docket Number: 747.
• Citation: 18 S.E.2d 120,220 N.C. 694
• Parties: GASSAWAY et al. v. GASSAWAY & OWEN, Inc., et al.
• Court: North Carolina Supreme Court

18 S.E.2d 120

220 N.C. 694

GASSAWAY et al. v. GASSAWAY & OWEN, Inc., et al.

No. 747.

Supreme Court of North Carolina

January 7, 1942

Claim for compensation under the Workmen's Compensation Act Pub.Laws 1929, c. 120, as amended.

The defendant Gassaway & Owen, Inc., is a close corporation. The deceased and Owen were the principal stockholders, a third party owning only a nominal amount. Gassaway was president and Owen was vice president and secretary. Gassaway, claimant's intestate, "looked at prospective work, making estimates, figuring bids and doing some of the actual construction work supervising some of the actual construction work." The corporation provided an automobile for his use and one for the use of Owen.

On Saturday June 29, 1940, the deceased, upon being called by telephone by an employee, went to the office, talked with the employee and at about 12:30 P. M. left on the company automobile furnished him telling the employee that he would meet him back there at 5 o'clock. At about 1 P. M., he was involved in an automobile wreck on the Winston-Salem High Point road about one-half mile beyond the intersection of the High Point and Kernersville road. He sustained injuries which resulted in death.

Claim for compensation was filed and an award was made. Upon appeal to the Superior Court the award was affirmed and the defendants appealed.

Sapp Sapp & Atkinson, of Greensboro, for appellants.

Ratcliff Hudson & Ferrell, of Winston-Salem, for appellees.

BARNHILL Justice.

The Workmen's Compensation Act was designed and intended for the relief of injured workmen and employees earning a "weekly wage" and not for salaried executives. "The title and theory of the act import the idea of compensation for workmen and their dependents". Hodges

v. Home Mortgage Co., 201 N.C. 701, 161 S.E. 220, 222; Roberts v. City Ice & Coal Co., 210 N.C. 17, 185 S.E. 438. Executive officers of a corporation are not, as such, its employees in the ordinary sense of the word and as it is used in this act. Hodges v. Home Mortgage Co., supra. "When the president of a corporation acts only as such, performing the regular executive duties pertaining to his office, he is not an employee within the meaning of the statutory definition." Higgins v. Bates St. Shirt Co., 129 Me. 6, 149 A. 147, 148; Hodges v. Home Mortgage Co., supra.

This is conceded by claimants. They contend, however, that the deceased at times performed the duties of an employee and that at the time of his death he was so engaged. Hence, under the terms of the act and pertinent decisions of this court his dependents are entitled to compensation.

We adhere to the dual capacity doctrine under which executive officers of a corporation will not be denied compensation merely because they are executive officers if, as a matter of fact, at the time of the injury they are engaged in performing manual labor or the ordinary duties of a workman. Hodges v. Home Mortgage Co., supra; Nissen v. Winston-Salem, 206 N.C. 888, 175 S.E. 310. It is upon this doctrine the claimants rely.

To come within this doctrine it is not sufficient to show that an executive officer sustained injuries while performing manual or mechanical labor which was no part of his duties. Hodges v. Home Mortgage Co., supra. Nor are desultory, disconnected, infrequent acts of manual labor performed by an executive sufficient to classify him as a workman when so engaged. Nissen v. Winston-Salem, supra. The test is, was he at the time of his injury, as a part of his duties, engaged in performing ordinary, detail, mechanical or manual labor or other ordinary duties of a workman? Nissen v. Winston-Salem, supra; Hodges v. Home Mortgage Company, supra; Hunter v. Hunter Auto Co., 204 N.C. 723, 169 S.E. 648.

Thus it is that the record presents two material questions for decision: (1) Is there sufficient competent evidence in the record to show that deceased received injuries resulting in death while engaged in the performance of any duty owing the defendant Gassaway & Owen either as an executive or as an employee, and if so, (2) Was he then engaged as an employee rather than as an executive?

Claimants rely on statements made by deceased, prior to his alleged departure for High Point to obtain a contract, to show that at the time of his death he was engaged in his work as an employee of defendant Gassaway & Owen.

On the Friday night prior to the accident deceased stated to one Stewart, an employee of the Highway Commission, that "he had some work practically sewed up in High Point and he would beat it over and get it, and get it done so that he would be in position to bid on my work." A foster daughter overheard this telephone conversation and testified that the deceased said he would meet him in High Point the next day or that he would see him. Mrs. Gassaway, who also heard the conversation, testified that it was about highway work and that Gassaway said, "you know I am hard up and need that job, and I need it bad and if I can keep this other firm off of the High Point job I think I can get it, I will try and see in High Point tomorrow," no definite date, time. One Melvin testified that on the Thursday before deceased talked with him and stated that he said "he was trying to get a job at High Point *** and he was going to High Point some time that week though he didn't say when, and...