Zurich Accident & Liab. Ins. Co. v. Indus. Comm'n of Wis.

• Citation: 213 N.W. 630,193 Wis. 32
• Parties: ZURICH ACCIDENT & LIABILITY INS. CO. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Decision Date: 03 May 1927
• Court: United States State Supreme Court of Wisconsin

193 Wis. 32

213 N.W. 630

ZURICH ACCIDENT & LIABILITY INS. CO.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

May 3, 1927.

Appeal from Circuit Court, Dane County; A. C. Hoppmann, Judge.

Proceeding under the Workmen's Compensation Act by Clara Josephine Green for the death of her husband, claimant, opposed by the Zurich General Accident & Liability Insurance Company, insurance carrier. The insurance carrier brought an action to review an award, of the Industrial Commission, and from an order refusing to set aside the award, the insurance carrier appeals. Affirmed.--[By Editorial Staff.]

This is an action by the insurance carrier to review an award of the Industrial Commission. From a judgment of the circuit court affirming the award, the plaintiff appeals. Prior to 1917 Adolph Green was the proprietor of a construction business at Green Bay. In 1917 he incorporated this business under the name of the Adolph Green Construction Company. He was the executive head of the corporation until his death in 1920. After his death, his two sons, Herman and William, assumed the management and control of the company. The total stock of the company consisted of 457 shares. Of these, William owned 218 shares, Herman 206 shares, another brother, George, held 22 shares. Herman, William, and George constituted the board of directors from the time of the death of the father to the death of Herman. During all such time Herman was president of the corporation, and William was secretary-treasurer.

The principal business of the firm was construction engineering, and it built a large bridge at Green Bay during the period from 1922 to 1925. The duties which William performed were of an office nature. He was called the inside man. Herman exercised direct supervision over the construction activities of the company. He might properly be called the outside or field man. The general policies of the company, however, were largely the subject of conference and agreement between Herman and William.

In January, 1925, they commenced the construction of a bridge over the Brazas river in Texas. It was expected that the Texas job would be completed in about four months. The company obtained statutory authorization to do business in Texas, and obtained separate insurance coverage liability under the Texas Workmen's Compensation Act. This insurance was obtained from plaintiff and appellant, of which the construction company had also obtained its Wisconsin coverage under the Wisconsin Workmen's Compensation Act. Herman Green took complete charge of the Texas job, spending all of his time, from January until he was killed on April 22, 1925, in Texas, except for two short trips to Green Bay. On April 22, 1925, he was killed in an accident occurring while unloading a 45 horse power boiler from a railroad car. His widow, claiming that he came to his death while performing services incident to and growing out of his employment, made application to the Wisconsin Industrial Commission for compensation from the Adolph Green Construction Company and the plaintiff, as its insurance carrier. An award was made in her favor, and this action is brought to review that award.Kittell, Jaseph, Young & Everson, of Green Bay, for appellant.

John W. Reynolds, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Commission.

Martin, Martin, Clifford & McHale, of Green Bay, for respondent Green.

OWEN, J.

[1] Appellant contends that the deceased was not an employé within the meaning of the Workmen's Compensation Act. This contention is based on the fact that he was president of the company. Leigh Aitchison v. Industrial Commission, 188 Wis. 218, 205 N. W. 806, is relied upon to establish the conclusion that he was not subject to the Workmen's Compensation Act (St. 1925 §§ 102.01 to 102.41). That case does not hold that an officer of the company may not also be an employé of the company, within the meaning of the Compensation Act. It simply holds that under all the facts and circumstances of that case Mrs. Aitchison was in no sense an employé. The conclusion in that case was based upon the fact that Mrs. Aitchison was practically the corporation; that she practically owned all of the stock of the corporation, elected the directors when they were elected, fixed her own salary, prescribed her own duties, and, in effect, dominated the corporation.

The deceased, Herman Green, entertained no such relation to the Adolph Green Construction Company. He did not own a majority of the stock; he could not elect a single director; he was one of three directors; he could not elect himself president; he could not employ himself as superintendent of construction; he had no independent control of the company; he did not occupy his position as president by virtue of any independent control, but by virtue of the concurrence of at least a majority of a board consisting of three directors. The principles underlying the Aitchison Case do not control this. It is conceded that, besides holding the officer of president of the company and discharging the duties pertaining to that office, he also acted as superintendent of construction upon the works. This constituted an employment palpably separate and distinct from...