280 N.W. 644 | Minn. | 1938
The relator employer is a corporation engaged in the nursery and landscape gardening business. It has about seven and one-half acres of land in two tracts in Oxboro Heath, the one tract of three and one-half acres contains a six-room dwelling, formerly owned by respondent, and the other, of four acres, is located a block or so away therefrom. Nursery stock is growing upon these tracts. When the employer incorporated, respondent transferred her home to it in exchange for shares of its capital stock. In October, 1936, there were outstanding 336 shares of stock in the corporation owned by the following persons: Respondent 173 shares; H.E. Atkinson 80 shares; J.P. Snyder 80 shares; S.L. Flesher 2 shares; and William T. March, respondent's husband, 1 share. The par value was $100 a share. William T. March was president and general manager during the year 1936 at the salary of $2,590, fixed at the beginning of the year by the board of directors. October 6, 1936, March was instantly killed in an automobile accident, and respondent, his widow and sole dependent, petitioned the industrial commission for an award pursuant to the workmen's compensation act. The referee found that "William T. March was employed by March Gardens, Inc., as general manager at a weekly wage of $49.81, under a Minnesota contract of hire," and that while so employed he met with an accident arising out of and in the course of his employment which caused his death and awarded compensation at the rate of $19.92 weekly during dependency. Relators appealed to the commission, which approved and adopted the findings of the referee, one commissioner dissenting.
Relators attack the two findings mentioned, viz.: (a) That March was an employe of the corporation at the time of the accident which resulted in his death, and (b) "that on and prior to the 6th day of October, 1936, William T. March was employed by March Gardens, Inc., as general manager at a weekly wage of $49.81, under a Minnesota contract of hire." There is no contention that the accident *197
which caused the death of Mr. March did not arise out of and in the course of the work he was performing for the corporation. But it is the claim of relators that as president, the chief executive officer, he could not be an employe so as to come under the workmen's compensation act. Relators cite and rely on Donaldson v. William H. B. Donaldson Co.
In the instant case it appears that none but routine work was done without consultation and direction of the board of directors. It is true that the minutes of the directors' meetings show that the only officer who was employed on a salary was the president; but the evidence is clear that Mr. March was not paid that sum for acting as president, or anything at all for discharging that duty. It does show that he spent his entire time as manager and superintendent of the corporate business. He had had experience in the kind of work handled by the corporation, having for many years been superintendent of the city parks of St. Paul. The relators state in their brief that "March was by profession a landscape gardener and nursery operator." Had the minutes shown that the $2,590 salary was to be received by March for superintending and managing the business as landscape gardener and nursery operator there could be scarcely a doubt that he would be an employe within the meaning of the compensation act. Relators cite Weiss v. Baker-Weiss Packing Box Co.
Upon this record we are not authorized to disturb the challenged findings of the industrial commission. The award is affirmed and the writ discharged. Respondent may tax $100 as attorneys' fees in this court.