Goldstein v. Gray Decorators, Inc., 33151

• Decision Date: 17 July 1964
• Docket Number: No. 33151,33151
• Citation: 166 So.2d 438
• Parties: Sol GOLDSTEIN, Petitioner, v. GRAY DECORATORS, INC., Consolidated Mutual Insurance Company and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 438

166 So.2d 438

Sol GOLDSTEIN, Petitioner, v.GRAY DECORATORS, INC., Consolidated Mutual Insurance Company and Florida Industrial Commission, Respondents.

No. 33151.

Supreme Court of Florida.

July 17, 1964.

Kastenbaum, Mamber, Gopman & Epstein, Miami Beach, and Alan M. Elster, for petitioner.

Howard N. Pelzner, Miami, for Gray Decorators, Inc., and Consolidated Mut. Ins. Co.

Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for Florida Industrial Commission.

O'CONNELL, Justice.

Sol Goldstein, the petitioner, filed a claim for workmen's compensation benefits.The Deputy found that the petitioner-claimant'was not covered by workmen's compensation' on the date of claimant's injury and dismissed the claim.The Full Commission affirmed the Deputy's order.The claimant seeks review here.

Although the parties, by stipulation, presented to the Deputy only the question of whether claimant was an employee, the Deputy seems to have decided two questions, i. e., (1) that claimant was not an employee of Gray Decorator's, Inc., but was an equal partner of Bernard Segal; and (2) that claimant had not intended to be covered by workmen's compensation.

We will consider both questions; and, in so doing, it is necessary to cite the facts which follow.

In September, 1961, claimant and Bernard Segal caused the formation of Gray Decorators, Inc., as a Florida corporation.Claimant provided the corporation with money, several hundred dollars worth of machinery and other personal property.It is not clear from the record whether this advance of money and property was in the nature of a loan or a gift, but it is immaterial to our decision.Claimant received no stock in the corporation, but he and Mr. Segal had agreed that, if and when claimant had solved certain business problems, and the corporation was operating successfully, claimant would have the right to receive one half of the capital stock of the corporation.This event never occurred.

At no time did claimant ever own any stock or hold any office in the corporation.Bernard Segal was President of the corporation.Mr. Segal and claimant each drew a net salary of $125.00 per week.Claimant was carried on the corporate payroll records as a salesman, and that he performed such duties is not disputed.On November 8, 1961, claimant was injured, admittedly in the performance of the corporation's business.

Thereafter, the claimant was unable to work steadily.He was not paid during the time that he did not work.In April, 1962, he was discharged by Mr. Segal who testified that he fired claimant because he was no longer an asset to the business.

When the corporation was formed, a workmen's compensation policy was issued by an agent named Cain.After a few weeks, this policy was cancelled, and on October 10, 1961, Mr. Cain wrote the policy of the respondent-carrier, which was in force on November 8, 1961, the date of claimant's injury.Both of these policies covered all the employees of Gray Decorators, Inc.

The carrier's agent, Mr. Cain, testified that immediately after the policy was written, the claimant and Mr. Segal requested that they be excluded from coverage under the policy in order to reduce the policy premium.Mr. Cain testified that he notified the carrier to exclude the two men on January 12, 1962, and, by endorsement on the policy, they were excluded from it on March 23, 1962.Mr. Cain testified over claimant's objection that claimant signed a waiver of coverage under the policy, but the waiver was not introduced in evidence.The testimony does not indicate whether the alleged waiver was signed prior to or after claimant's injury, or whether, if executed after the injury, it waived rights already accrued.

In his order, the Deputy found that although claimant and Bernard Segal formed Gray Decorator's, Inc. and operated the business as a corporation, nevertheless, the claimant'was for all intents and purposes an 'equal' partner with Mr. Segal.'The Deputy stated that claimant's activities in forming the corporation and furnishing property to it were not consistent with an employee-employer relationship.

Notwithstanding these findings, the Deputy based his decision that claimant was not entitled to benefits under the act, not on the question of his status as an employee, but on a finding that claimant did not intend to be covered by workmen's compensation.This is apparent in the Deputy's order for after discussing claimant's contention that he was an employee rather than an executive, the Deputy said:

'This self analysis cannot be sustained although in and of itself it does not enure to his detriment.However, it is very evident that the clear intent of both Mr. Goldstein and Mr. Segal was that they would not be covered under workmen's compensation in order to save premium costs and said decision was made prior to the accident which allegedly occurred on November 8th, 1961.'

'Wherefore, it is the ruling of the undersigned Deputy Commissioner that Mr. Goldstein was not covered by workmen's compensation on said November 8, 1961 and, therefore, his claim for benefits is hereby dismissed.'(Emphasis added.)

It makes no difference whether the Deputy...