Leigh Aitchison, Inc. v. Industrial Commission
205 N.W. 806
Wis.
1925
Check Treatment
Rosenberry, J.

Two questions are presented upon this appeal: first, whether Leigh Aitchison was at the time of her injury an employee of Leigh Aitchison, Inc.; second, whether an employee whosе occupation does not require her to be on the street to such an extent as to' substantially increаse the hazards, of the employment beyond those to which the public is. generally exposed, is entitled to rеceive compensation for injuries sustained from a slippery sidewalk not a part of the employеr’s premises. In the view which we take of the case it will be necessary for us to consider only the first question. In disposing of this question the trial court said:

“The mere fact that applicant happened to be the presidеnt and the owner of practically all of the stock of the employer corporation does nоt, standing alone, establish the fact that she is not entitled to compensation,” and cited In re Raynes, 66 Ind. App. 321, 118 N. E. 387; 15 A. L. R. 1288; 25 A. L. R. 376.

It may be conceded that the mere fact that one is a stockholder, officer, or director of a corporatiоn does not preclude his being at the same time an employee. No hard-and-fast rule can be laid down bаsed upon the amount of stock which ‍​‌‌‌‌​‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌​‌‌​​​​​‌​​‌​‌‌‌​‌​‌‌‌​‌‍an individual may own or any other arbitrary standard. A study of the cases to which reference has been made sustains that. It is quite apparent that in this case none of the ordinary incidents of the relationship of employer and *221employee exist. 20 Corp. Jur. 1241, and cases cited. Mrs. Aitchison fixed her own salary, which was substantially the total amount of the earnings of the corporation, fixed her own hours of employment; prescribed her own duties, was responsible to nо one; no one had the power or authority to discharge her and she was subject to no one’s direction. It would seem to require no argument to show that under those circumstances she was not an employee in thе sense in which that term is used in the workmen’s compensation act. Wood, Master & Servant, sec. 317. See, also, Farmer v. St. Croix P. Co. 117 Wis, 76, 93 N. W. 830.

We do not in reaching this conclusion ignore the fact that the corporation is a distinct entity, nor do we reach this conclusion merely bеcause she was the owner of a very large proportion of the stock issued, but because upon thе undisputed facts she did not sustain the relation of employee to any one. While it is true she devoted praсtically all of her time to the carrying on of the business of the corporation, in the doing of work which might be donе by employees, that is not controlling. The relationship of a person to a corporation is not dеtermined by the nature of the services performed but by the incidents of the relationship as they actually exist.

Thе court of appeals of the state of New York in a very helpful and illuminating discussion of this matter reached this conclusion:

“The claimant in this case is willing, in order to collect a workman’s allowance for himself from thе insurance carrier, to assume a status that he might be the first ‍​‌‌‌‌​‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌​‌‌​​​​​‌​​‌​‌‌‌​‌​‌‌‌​‌‍to disclaim for any other purpose. Theoretiсally he was subject to the orders of his corporation and was liable to'be discharged for disobedience. Practically he was the corporation, and only by a legal fiction its servant in any sense.” Bowne v. S. W. Bozone Co. 221 N. Y. 28, 116 N. E. 364.

It can hardly be said that Mrs. Aitchison could in one capacity employ herself or discharge herself or prescribe the duties of her employment in another capacity. The *222workmen’s compensation act contemplates that an employee must have an employer. A person cannot employ himself to work for himself. Mrs. Aitchison was subject to no one; she could do as she pleased. The entire earnings were awarded to her as salary. If the corporatiоn did not earn the amount of her salary and she paid it to herself, it would be out of her own capital. We shall not speculate ‍​‌‌‌‌​‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌​‌‌​​​​​‌​​‌​‌‌‌​‌​‌‌‌​‌‍nor philosophize as to what might or might not be the legal relationship in supposititious cases. It is quite clear in this case that the relationship of employer and employee did not exist. She was. а managing officer and not an employee. England's Ex’rs v. Daniel F. Beatty O. & P. Co. 41 N. J. Eq. 470, 4 Atl. 307. A stockholder may be both. Conlee L. Co. v. Ripon L. & M. Co. 66 Wis. 481, 29 N. W. 285.

But it is said upon the authority of Porter v. Industrial Comm. 173 Wis. 267, 181 N. W. 317, that even upon the undisputed facts the question of whether or not Mrs. Ait-chison was an employee is one of fact and not of law and that therefore the finding of the Industrial Commission is conclusivе. We have no disposition to modify what is there said with reference to the conclusiveness of the findings of the Industrial Commission upon questions of fact. However, what was said in P.orterv. Industrial Comm., supra, аs to what constitutes a question of ‍​‌‌‌‌​‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌​‌‌​​​​​‌​​‌​‌‌‌​‌​‌‌‌​‌‍fact must be held to be modified by Weyawega v. Industrial Comm. 180 Wis. 168, 192 N. W. 452. This case is strikingly illustrative of the distinction. 'Although the faсts in this case are undisputed, it is only by the application of established-legal principles to those facts that a conclusion can be reached as to whether or not Mrs. Aitchison sustained the relation of employеe to the plaintiff corporation. That being the case, there being no dispute upon the facts, it is clearly a question of law. No one could determine upon the evidence alone in this case whether оr not Mrs. Aitchison was an employee. It is only by the application of legal principles that that result can be аrrived at. It should be pointed out that in the Porter *223Case the court was of the opinion that even if it ‍​‌‌‌‌​‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌​‌‌​​​​​‌​​‌​‌‌‌​‌​‌‌‌​‌‍were a question of faсt the finding of the Industrial Commission was correct, and therefore a correct result was reached although a wrong reason was given for it. While in that case as in this opposite conclusions may be reached by different individuals, the divеrgence is due not to any inference of fact but to varying concepts as to what in law makes, a person an employee.

By the Court. — Judgment reversed, with directions to enter judgment setting aside the award of the Industrial Commission.