S. Sur. Co. v. Childers

• Decision Date: 26 September 1922
• Docket Number: Case Number: 12790
• Citation: 1922 OK 290,209 P. 927,87 Okla. 261
• Parties: SOUTHERN SURETY CO. et al. v. CHILDERS et al.
• Court: Oklahoma Supreme Court

1922 OK 290

209 P. 927

87 Okla. 261

SOUTHERN SURETY CO. et al. v. CHILDERS et al.

Case Number: 12790

Supreme Court of Oklahoma

Decided: September 26, 1922

Syllabus

¶0 1. Master and Servant--Workmen's Compensation--Findings--Conclusiveness.

Where the State Industrial Commission finds as a fact that the claimant was injured while in the course of his employment and there is evidence to sustain such finding, said finding and decision is final, and this court is not authorized to weigh the evidence upon which the finding of fact is based.

2. Same -- Right to Compensation -- "Employee" -- Executive Officer.

That one is the principal stockholder and president or other executive officer of a corporation that employs him is not, standing alone, sufficient to eliminate him from those regarded as employees within the Workmen's Compensation Law.

3. Same.

An officer in a corporation may serve both as an officer and workman under circumstances making him an employee within the meaning of the Workmen's Compensation Law, and if he sustains injuries while performing duties in the latter capacity, he is entitled to compensation under said act

Original Proceeding in Supreme Court to Vacate an Award of the State Industrial Commission.

Petition filed by Southern Surety Company, a corporation, and Childers Motor Company against B. T. Childers and the State Industrial Commission. Award affirmed.

Stanard & Ennis, for petitioners.

Monk & McSherry, S. P. Freeling, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for respondents.

NICHOLSON, J.

¶1 This is an original proceeding instituted in this court by the petitioners to review an order of the State Industrial Commission awarding the respondent B. T. Childers compensation for a period of 15 weeks and one day, amounting to the sum of $ 288. The facts, briefly stated, are that the respondent owned a garage and automobile agency at McAlester, and employed more than two men. The petitioner Southern Surety Company issued to Childers a workmen's compensation insurance policy containing the classification of automobile dealers. Subsequently Childers organized a corporation known as the Childers Motor Company with a capital stock of $ 25,000, and transferred his garage and automobile agency to this corporation in exchange for $ 20,000 of the capital stock of the corporation. The policy by proper indorsement was transferred to Childers Motor Company. The respondent B. T. Childers was president, owned 80 per cent. of the stock of the corporation, and received a salary of from $ 300 to $ 400 per month. A portion of his time was spent in manual or mechanical labor in the garage and a portion in selling cars and conducting the business of the corporation. The corporation owned a racing car which was used only for racing purposes and as an advertising medium. While the respondent B. T. Childers was testing out this car on the race track at McAlester, the car was run into by another racing car, resulting in the injury to said respondent for which recovery was sought.

¶2 The petitioners first contend that the classification "automobile dealers" contained in the policy does not cover the operation of a racing car, the same not being a part of the business or duties of an automobile dealer; that the respondent B. T. Childers was injured while testing out said car for the purpose of entering the same in a racing contest, hence, the work being done by him at the time of the injury was not within the classification of the policy. The policy of insurance made the basis of this action contains the following classification set out in the application:

"Automobile Dealers--with or without garage, and auto garages. Entire remuneration of all employees, not excepting clerical (including executive officers whose duties expose them to any operative hazard of the business must be included without division). The actual remuneration of such executive officers and salesmen must be included in the payroll but not in excess of $ 1,500 per annum per officer or salesman."

¶3 The agent of the Southern Surety Company who issued the policy testified that he knew the claimant used a racing car and that the premium was calculated and based upon the payroll, which included the salary of Childers; that he did not, prior to the accident, notify Childers that the operation of a racing car was not within the terms of the policy; neither did he notify the Southern Surety Company that the Childers Motor Company maintained a racing car.

¶4 If Childers, the claimant, had been injured while driving the car in a race or while racing, we would have no hesitancy in holding that the petitioners were not liable under the terms of the policy, for the reason that the operation of a car in a race is no part of the business of an automobile dealer or of a garage, but such is not the case. The claimant was testing out the car to ascertain if it needed repairs and was on the race track because he was not permitted to drive the car on the streets. He was not racing, but was driving at a rate of speed not to exceed 20 or 25 miles per hour when his car was struck by another car. We are unable to see why the fact that the car was owned by the Childers Motor Company should militate against the claimant's right of recovery. Had the car belonged to another, and been brought to the garage for repair, or to ascertain whether or not repairs were needed, and had a mechanic or employee been instructed to rest out the car to ascertain what, if any, repairs were necessary, and while thus engaged sustained an injury, it could not successfully be contended that the injury did not arise out of and in the course of his employment. The claimant performed manual and mechanical labor for the Childers Motor Company as a part of...