Does the mere fact that he was an officer of the corporation exclude him?

In Honnold on Workmen's Compensation, vol. 1, p. 173, occurs the statement that, as a general rule, the fact that one is an officer or director of the corporation employing him will not preclude him from being deemed an employee within the meaning of Compensation Acts. The author cites in support of the statement the rulings of certain Industrial Boards including a ruling made by the Industrial Commission of New York in Bowne vs. S. W. Bowne Co. Such ruling was subsequently sustained in the Appellate Division of the Supreme Court (176 App. Div. 131, 162 N. Y. Supp. 244), but was reversed by the Court of Appeals (221 N. Y. 28, 116 N. E. 364). The facts were as follows: The corporation was capitalized at $80,000, of which the president, who was the claimant, owned $56,000. He was injured while assisting certain employees in removing lumber. His salary was $70 per week. He superintended the various activities of the plant, and at times assisted in manual labor. His stock yielded him dividends for the previous year amounting to $30,000. We believe that that case was correctly decided by the Court of Appeals, and that it did not appear that the claimant was such an employee as is entitled to compensation under the New York Act.

The decision in Beckmann vs. Oelerich, 174 App. Div. 353, 160 N. Y. Supp. 791, is indicated by the following quoted therefrom:

"As to the claim that the claimant was not an employee within the meaning of the act; the claimant spoke of his compensation for services as salary. He was the owner of 7 of the 100 shares of stock of the corporation. There is no claim that the payments received by him were dividends upon his stock. The commission found that the weekly payment made him was his weekly wage. Its finding was fully justified by the evidence. While he was vice president of the corporation, his employment was doubtless through the board of directors, whom he may or may not have been one. Although he was the general foreman, he worked in the various industries of the corporation the same as other workmen, and was doing the work of an ordinary employee at the time he was injured. His being vice president and a stockholder in no way effected his status as an employee."

See, also, Carswell vs. Sharp, 3 B. W. C. C. 552, which bears somewhat on the question.

[4-7] It appears to us as sound that compensation under Workmen's Compensation Act cannot be denied one simply because he happens to be the president or other executive or managing officer of the corporation that employs him, and that that fact alone is not sufficient to eliminate him from among those regarded as employees within the meaning of such acts. If the corporation is great and powerful, with extensive financial resources; if an official is a large stockholder and his time is occupied in the discharge

of the usual duties of his office and his salary is fixed because of the discharge of such duties-it would seem apparent that he could not be regarded as an employee under such an act. But in another corporation of humbler proportions such an official might serve in dual capacity; that is, as an officer and also as a workman. It is not unreasonable to conceive of a case where the discharge of the official duties would constitute but a small portion of the services rendered by him to the corporation. Such an officer might be hired in fact to perform manual labor in connection with other employees, and his time in the main be occupied in performing such service and regular wages paid him accordingly. Such an official in his capacity as a workman might measure up in all respects to the conception of an employee within the meaning of the act as we have hereinbefore developed it, and in such capacity we belive that he should be regarded as an employee within the meaning of Compensation Acts. We find nothing in the facts inconsistent with regarding Bert F. Raynes as such an employee. The question of what constitutes an employee under the act is a law question. However, having thus outlined the law as we conceive it to be we regard the question as to whether the claimant here is such an employee as one of fact for the board, and we so answer the third question.

APPELLATE COURT OF INDIANA.

IN RE BETTS ET AL. (No. 10028.)*

WORKMEN'S COMPENSATION-COURSE OF EMPLOYMENT"ARISING OUT OF EMPLOYMENT."

Where a servant of a tinner while riding in the master's wagon to the place a job was being done got out while the horse was being watered, and was killed by an automobile while crossing the street to buy tobacco, the accident did not arise out of his employment within the Act (Laws 1915, c. 106), and his widow and children were not entitled to compensation for his death.

Felt and Dausman, JJ., dissenting.

Proceedings by Myrtle Betts and children under the Workmen's Compensation Act to obtain compensation for the death of the husband and father, Howell T. Betts. Opposed by Ebenezer Crompton, employer. Certified question of law by the Industrial Board of Indiana. Answered in favor of employer.

HOTTEL, J,

The statement of facts certified by said board is as follows:"On the 6th day of October, 1916, and for many years prior thereto, Ebenezer Crompton was engaged in the tinning and

* Decision rendered, Jan. 18, 1918. Dissenting opinion, Jan. 22, 1918. 118 N. E. Rep. 551.

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furnace repair business in the city of Indianapolis; during all of said period he maintained a shop and place of business in Ft. Wayne avenue in said city; that for the purpose of transporting his employees and material from his place of business to * * * where they worked, and * * back to his place of business, the said Crompton maintained and furnished to his employees a wagon and horse; that on and prior to the 6th of October, 1916, one Howell T. Betts was in the employment of the said Crompton in said business at an average weekly wage not exceeding $10; that during the period of his employment * it was the custom of said Betts, and other employees with whom he worked, to use the horse and wagon of * * * said Crompton in going to and returning from their work, not only for the transportation of material, but also * of said employees; that during * *the employment of * * said Betts he returned to Crompton's place of business at the noon hour and * generally ate his lunch with his employer; that * * * said * * * Betts was an habitual and almost constant user of tobacco, of which *** the employer * * * had actual knowledge during his employment; that frequently he requested and was furnished small sums by Crompton, between pay days, for the purpose of purchasing tobacco; that on the 6th of October, 1916, * * * Betts and * * * Crompton ate their noon lunch together; that after finishing their noon lunch Betts in formed Crompton that he was out of tobacco and would like to have a quarter * * * to purchase some, whereupon * * Crompton gave to Betts 25 cents for the purpose of purchasing tobacco; that on said date the said Betts and another employee * were repairing a furnace on Park avenue between Thirty-Sixth and Thirty-Seventh streets, and were using the horse and wagon * * * to transport themselves and material from Crompton's place of business and * ** to his place of business; that immediately after receving said 25 cents * Betts and the other employee * * * started to the point where they were repairing said furnace in Crompton's wagon; that they traveled north on Central avenue, which was the direct and proper route for them to take; that upon reaching the intersection of Central avenue and Thirthieth street the other employee, who was driving the horse, stopped at the public watering tank at the northeast corner of the intersection * for the purpose of watering Crompton's horse; that just before reaching Thirthieth street, Betts said to his companion, 'I want to get off and get some tobacco'; that as the driver stopped the horse at the * * * tank Betts stepped from the wagon into Central avenue; that immediately accross the street and on the west side of Central avenue a drug store was situated; that as Betts stepped from the wagon he faced said drug store and had taken two or three steps from the wagon, and in the direction of the drug store, when he was struck by an automobile traveling to the north in Central

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avenue and killed almost instantly; that the said Betts left surviving him a wife and four children, * who were being supported by him; that Crompton had actual knowledge of the death of Betts immediately after it occurred; that the widow makes claim for compensation," etc.

The law question propounded by the board is:

"Did the accident resulting in the death of Howell T. Betts arise out of his employment with Ebenezer Crompton?"

This court, within the past year, has had before it numerous cases in which it was required to determine whether a particular accident grew out of the employment in which the injured employee was engaged at the time of his injury, and in those cases it has indicated the general rules applicable and of assistance in the determination of said question. Haskell, etc., Car Co. vs. Brown, 117 N. E. 555; Union Sanitary Mfg. Co. vs. Davis, 115 N. E. 676; In re Loper, 116 N. E. 324; Holland, etc., Sugar Co. vs. Shraluka, 116 N. E. 330; In re Harraden, 118 N. E. 142, No. 10087, and see cases there cited; United Paperboard Co. vs. Lewis, 117 N. E. 276. Little, of anything, of benefit in the determination of such question can be added to what the court has already said in those cases, and we therefore deem it unnecessary to attempt any extended effort to support the conclusion which we have reached in this case. Each case is necessarily, in a large measure, controlled by its own particular facts, and in many cases, as in the present, such facts bring the case within a zone so close to the border line that courts may differ in their judgment as to which side of said line the particular case should be placed. Such cases may be and are in fact, by different courts, placed upon either side of said line, and in each instance respectable authority is cited by the court to uphold its action.

There is a tendency of the courts, indicated in the more recent cases to give to such Compensation Acts an interpretation as board and liberal in favor of the employee as their provisions will permit, in furtherance of the humane purpose which prompted their enactment. We approve and are in sympathy with this tendency, but we understand that all of these cases recognize and in effect hold that:

"It is not enough for the applicant to say, "The accident would not have happened if I had not been engaged in that employment, or if I had not been at that particular place.' He must go further and must say, "The accident arose because of something I was doing in the course of my employment, or because I was exposed by the nature of my employment to some particular danger.' Craske vs Wigan [1909] 2 K. B. 635; Shaw vs. MacFarlane, 8 B. W. C. C. 382, 390, 391; Union Sanitary Mfg. Co. vs. Davis, 115 N. E. 676, 678.

There must be some connection between the injury and the employment other than the mere fact that the employment brought the injured party to the place of injury. That is to say, there

must be some causal connection between such employment and the injury in the sense that, by reason of the employment there was an increased or additional exposure of the injured party to the kind or character of hazard or danger (in the instant case, a street risk) which caused his injury. The injury "must have had its origin in a risk connected with the employment, and must have flowed from that source as a rational and natural consequence." Union, etc., Co. vs. Davis, supra, at 115 N. E. 677; Pierce vs. Provident, etc., Co., Ltd. [1911] 1 K. B. 997, 999, 3 N. C. C. A. 279n; Martin vs. John Lovibond & Sons, Ltd. [1914] 2 K. B. 227, 5 N. C. C. A. 985, 990. And see note 5 N. C. C. A. 986 et seq.; Glatzl vs. Stumpp, 220 N. Y. 71, 114 N. E. 1053.

Of course, it cannot be said that Betts, while on an errand for himself, was doing any service required by his employment, and we are unable to see wherein his employment exposed him to the hazard or danger which resulted in his death. To illustrate our meaning, if the employment of the injured party had been of the kind to take him on a roof, and in going for his tobacco he had slipped, or for any other cause had fallen from the roof and been injured, we can see a connection between the employment and the injury, in that his employment placed him where the hazard of indulging his tobacco was increased. In the instant case the employment did not keep deceased on the street as a pedestrian. If it could be said to expose him to any dangers of the street, other than that to which the public generally are exposed, it was the danger of traveling in a vehicle to and from his work. In other words, as a pedestrian on the street going for his tobacco, his employment exposed him to no danger that would not have been incurred by any other pedestrian on a like errand, nor was he exposed to any hazard different from or in excess of the hazard to which he would have been exposed when on such errand, though he had not been engaged in the employment indicated.

For these reasons, we think the question of law propounded should be answered in the negative. As supporting or tending to support this conclusion, and the grounds upon which it is based, see Pierce vs Provident, etc., Co., supra; Andrew vs. Failsworth, etc., Soc. [1904] 2 K. B. 32; Martin vs. John Lovibond, etc., supra, and cases therein cited; Shaw vs. MacFarlane, supra, and cases therein cited; Union, etc., Co. vs. Davis, supra; McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306; In re Harbroe, 223 Mass. 139, Ill. N. E. 709, L. R. A. 1916D, 933; Murray vs. Allen, etc., Co., 6 B. W. C. C. 215; Coronado Beach Co. vs. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164; Federal Rubber Co. vs. Havolic, 162 Wis. 341, 156 N. W. 143, L. R. A. 1916D, 968.

Ibach, C. J., and Batman, P. J., concur. Caldwell, J., concurs in result, Felt. and Dausman, JJ., dissent.