West Virginia Coal & Coke Corporation v. State Compensation Commissioner

Decision Date10 December 1935
Docket Number8338.
Citation182 S.E. 826,116 W.Va. 701
PartiesWEST VIRGINIA COAL & COKE CORPORATION v. STATE COMPENSATION COMMISSIONER.
CourtWest Virginia Supreme Court

Submitted November 23, 1935.

Syllabus by the Court.

1. Under the provisions of the Workmen's Compensation Act (Code 1931, 23-2-1), that members of firms and officers including managers, shall not be included within the protection of said act, the question whether in a given instance a corporate representative is a manager must be determined upon the facts presented.

2. A corporate representative who has supervision of a corporation's coal mining operations in several counties has under his authority assistant managers, superintendents engineers, and others, and is responsible only to the board of directors, will be deemed a manager within the purview of the Workmen's Compensation Act, Code 1931, 23-2-1.

3. Where there is a contract of employment between a physician and a subscriber to the Workmen's Compensation Fund whereby the physician, for stipulated remuneration undertakes to render professional service to employees of such subscriber for a definite period, and places his services and professional ability at the call of his employer, the physician will be considered an employee within the meaning of the Workmen's Compensation Act.

Original mandamus proceeding by the West Virginia Coal & Coke Corporation against the State Compensation Commissioner.

Writ awarded in part, as prayed for.

E. A. Bowers, of Elkins, for relator.

Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst., Atty. Gen., for respondent.

MAXWELL, JUDGE.

By the Workmen's Compensation Act employers availing themselves thereof are required to pay premiums based on their payrolls. Code 1931, 23-2-5.

This controversy involves a difference of opinion between the officials of the relator and the compensation commissioner whether a salaried representative of the relator, whom it denominates a manager, and certain salaried physicians are employees within the purview of said statutory requirement. In its payroll reports to the commissioner, the relator has not included the salaries of these persons. The commissioner takes the position that such salaries should have been included and that because of their omission there is a shortage of $610.42 in the premiums that should have been paid for the period beginning July 1, 1933, ending January 31, 1935. The prayer of the petition is that the commissioner be required to expunge from his records the order requiring relator to pay the said sum, and that he receive relator's premium payments calculated on a basis exclusive of the salaries of the persons indicated.

The Compensation Act applies generally to persons in the service of employers as therein defined. There are certain exclusions. The pertinent one is this: "Nor shall a member of a firm of employers, or any officer of an association or of a corporation employer, including managers, or any elective official of the State, county or municipal corporation, be deemed an employee within the meaning of this chapter." Code 1931, 23-2-1. Such is the reenactment of 1925. Acts 1925, c. 68, § 9. Prior thereto, the exclusion was broader. It then applied to firm members, officers, managers, superintendents, assistant managers and assistant superintendents. Code 1923, c. 15P, § 9. Though the change in the statute manifested legislative intent to broaden the scope of the Act, its applicability in a given instance must be determined on the facts presented. The situation must be gauged by the duties and responsibilities of the person in question, and not by the name that is applied to his position. If in reality he is a superintendent or assistant manager, the fact that he is denominated "manager" will in no degree be determinative of the matter. The name applied will not alter the facts.

By the statute all of a company's officers, including managers, are denied the protection of the statute. The individual here involved discharges, in fact, the duties of a manager. The relator has coal mines in four counties of West Virginia and none elsewhere. The official called manager has supervision and direction of all mining operations. Subject to his authority are assistant managers, superintendents, engineers, skilled mechanics and others. He is a stockholder and director and the executive officer in charge of operations and is responsible only to the board of directors. He is a manager in fact as well as in name.

The fact that the company has a manager of sales with offices outside this state is a matter aside the inquiry. We are concerned with the West Virginia set-up. The sole official within this state having managerial duties must be deemed a manager as contemplated by the compensation statute. As such he is expressly excluded by the statute from the protection of the fund. Being so excluded there should not, of course, be any premiums against his company on the basis of the salary which he receives.

Were the physicians...

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