Hirsch v. Hirsch Bros.
| Citation | 97 N.H. 480,92 A.2d 402 |
| Parties | HIRSCH v. HIRSCH BROS. Inc., et al. (two cases). |
| Decision Date | 05 November 1952 |
| Court | Supreme Court of New Hampshire |
Hamblett, Moran & Hamblett, Nashua (Charles K. Hamblett, Nashua, orally), for the plaintiffs.
Paul E. Nourie, Manchester, by brief and orally, for the defendants.
The defendants' exceptions present the question of whether at the time of the accident on June 30, 1951, Carl and Albert Hirsch could be found to have been acting as 'employees' of the insured corporation within the meaning of the Workmen's Compensation Law. The statutory definition of 'employee,' so far as pertinent, is as follows: 'Employee, shall mean any person in the service of an employer subject to the provisions of this chapter under any contract of hire, express or implied, oral or written * * *.' Laws 1947, c. 266, § 2 subd. II.
The defendants contend that the evidence required a finding that Carl was acting in an executive capacity when he suffered the injury which resulted in his death; and that Albert was acting in a like capacity at the time of his injury, or if not, was 'merely performing an accommodation'; and that neither was an 'employee' of the corporation for purposes of compensation. The plaintiffs take the position that both could properly be found to have been acting in non-executive dapacities, and further that corporate executives are within the statutory definition of employees.
The finding that Carl and Albert Hirsch were employees of Hirsch Brothers, Inc. when the accident occurred was warranted by the evidence. The fact that each of them was a stockholder, director, and officer of the employer clearly did not preclude recovery by them as employees, if their injuries arose out of and in the course of the exercise of the functions of employees rather than executives. See White v. Arnold Wood Heel Company, 90 N.H. 315, 319, 8 A.2d 737; Higgins v. Bates Street Shirt Company, 129 Me. 6, 149 A. 147; Emery's Case, 271 Mass. 46, 170 N.E. 839.
According to the evidence, both brothers were regularly employed at work of a non-executive nature, for compensation at an hourly rate for an eight hour day. On the day of the accident, prior to the trip to West Lebanon, Albert was working in the company shop in Pelham preparing equipment for a new job, and Carl was supervising excavation work in Lawrence, Massachusetts. They interrupted their work for the purpose of the trip, and probably would have resumed it upon return, had the accident not occurred. They were paid at their regular hourly rate for the time required for the trip.
Under the by-laws of the corporation, the management of the corporation was vested in a board of three directors. The brothers were the surviving directors, the third director, their father, having deceased a month previously without replacement. As a matter of practice, questions of policy were decided by the brothers outside of regular working hours, and they received no pay for services or for the performance of official duties beyond the wages paid to them on an hourly basis. According to the by-laws, Carl, as treasurer, had 'charge of all the financial affairs of the corporation,' with power to sign checks, and with the president to execute contracts binding upon the corporation. The duties prescribed for the office of president, held by Albert, were to preside at meetings, sign checks, and execute contracts. In practice, Albert ordinarily purchased supplies, small tools, and automotive parts when needed, but major purchases including those of heavy equipment, were made by Carl.
The trip during which the accident occurred was made for the purpose of inspecting a low-bed trailer, with a view to purchase. The decision to inspect the trailer had been reached by the brothers after regular working hours, on a previous evening. The question of actual purchase was left to Carl. In ordinary course he would have traveled by automobile, but to save time, he arranged on the day of the accident for Albert to fly him to West Lebanon in a plane in which the latter had an interest. If upon these facts the Hirsch brothers were employees of the corporation within the meaning of the act, it is not questioned that their injuries and the resulting death of Carl arose out of and in the course of their employment. Laws 1947, c. 266, § 2 subd. III.
Under the Workmen's Compensation Act as it stood before the comprehensive amendment of 1947, workmen not engaged in manual or mechanical labor had been brought within the scope of the act, Cf. Brown v. Conway Electric Light and Power Company, 82 N.H. 78, 129 A. 633; Davis v. W. T. Grant Company, 88 N.H. 204, 185 A. 889 but legislative retention of the word 'workmen' was thought to exclude from benefits employees whose functions were executive. White v. Arnold Wood Heel Company, 90 N.H. 315, 8 A.2d 737, supra. Accordingly it was then held that a treasurer and stockholder of a corporation, employed by it as a traveling salesman at a weekly salary, was entitled to compensation for injuries suffered while performing duties as salesman, rather than as an executive. Id. It was considered however that the Legislature had not then so far broadened the statute 'as to wipe out the distinction between employees whose duties are those of workmen and those whose duties are of an executive nature.' Id. 90 N.H. 319, 8 A.2d 739.
Whether enactment of the amendment of 1947, using the word 'employees' instead of 'workmen' was intended to wipe out the distinction recognized in the White case need not be determined. It is sufficient that the Hirsch brothers were injured under circumstances warranting a finding that they were not then acting in executive capacities. If it might have been found that Carl so acted in deciding whether to purchase the trailer, such a finding was not compelled. The finding that he was an employee was one that he was acting 'in the service of' the company 'under a contract of hire.' It could be found that in inspecting the trailer he was called upon to exercise no discretion conferred upon him in any official capacity. The corporate policy that a suitable trailer should be purchased had already been decided. The determination of whether the particular trailer was suitable was a matter capable of delegation to a qualified servant. The finding and ruling that Carl was an employee was warranted by the evidence and will not be disturbed. Cf. Rowe v. Rowe-Coward Co., 208 N.C. 484, 181 S.E. 254; Claude H. Wolfe, Inc., v. Wolfe, 154 Fla. 633, 18 So.2d 535.
The evidence also warranting the finding and ruling that Albert was an employee of the...
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