270 N.W. 694 | Minn. | 1936
The Thompson company is a corporation engaged in the sale and installation of lightning rods, roofing, and smokestacks. Its president was George E. Thompson; its secretary, his wife, E.D. Thompson; and its vice-president, John M. Thompson, relator here. The corporation maintained no separate office or warehouse, the family home being used for that purpose. The board of directors was made up of members of the Thompson family. George E. Thompson owned all the shares of stock with the exception of two, one of which was owned by his wife and the other by relator.
The day relator was injured he had just completed, at the Thompson home, loading a trailer with material and supplies to be used on an out-of-town contract job acquired by the corporation. At the same time one Wesley was putting storm windows on the family home, which, it will be remembered, was also the business office. Relator testified that he, after having finished loading the trailer, on instructions from his father, went to help Wesley. While attempting to put a storm door on the room used by relator as his own bedroom, relator was injured. The commission found that the injuries "did not arise out of and in the course of" the employment of relator by the corporation. That finding is assigned as error.
Relator was a young man of 22 years of age. He was unmarried and had always lived at home. Ever since the time when he was in high school he had worked in his father's business or that of the corporation. There appeared to be no specific agreement as to payment for his board and room, relator being allowed expense money when out of town on the corporation's business and being given board and room when at home. There was much conflict and dispute as to just how much relator received as salary from the corporation. The books of the company were not in good order. The entries were difficult to interpret, and the witnesses were not in accord with one another on the matter. *549
Relator alleges that this case is controlled by O'Rourke v. Percy Vittum Co.
Vittum had many cedar trees on his farm which he sold for transplanting. O'Rourke was sent out to the farm by Vittum to dig some of those trees and was injured while so doing. It was held that he was within the scope of his employment for the corporation. Vittum had authority to order O'Rourke to do the work, and it nowhere appeared that O'Rourke had any knowledge or had any reason to believe that the farm was not operated as a part of the business of the corporation. Here just the contrary is true. Relator knew that putting on storm doors and storm windows on his own bedroom had nothing to do with the work of installing lightning rods or other such equipment. An employe is not within the protection of the workmen's compensation act when as a voluntary accommodation to his employer he performs duties outside the scope of his employment. O'Rourke v. Percy Vittum Co.
Because of the conclusion above reached, no consideration need be given the other matters on which there was testimony.
Affirmed.