DISSENTING OPINION. I can not concur in the majority opinion.
The decision that decedent was not a "workman" within the meaning of the Workmen's Compensation *Page 647 Act, is based, in said majority opinion, on three conclusions of fact, namely: (1) that decedent's compensation could not be "designated as wages" rather than salary, (2) that his compensation was "munificent," (3) that his services were not "manual labor, nor of a like degree of industrial or commercial importance as manual labor, when viewed from the standpoint of individual accomplishment." (Quotations from majority opinion.)
With reference to said conclusions of fact, I wish to say that I find no provision in the Workmen's Compensation Act as amended (1929) which excludes employees, who fall within the groups of employees suggested in said conclusions of fact, from the beneficiaries of said Act.
The case of In re Raynes (1917), 66 Ind. App. 321, 118 N.E. 387, is relied upon, in the majority opinion to support such a construction of the Workmen's Compensation Act.
It should be noted that said opinion was an opinion on certified questions of law submitted by the Industrial Board, and not a decision of this court upon an appeal from an award of the Industrial Board. It should also be noted that in said opinion this court construed the Workmen's Compensation Act of 1915, as amended prior to 1929, and did not construe the Act as amended in 1929.
Disregarding said observations, however, I do not think that said case is authority for holding that if an employee's compensation cannot be designated as wages, rather than salary, or if his compensation is munificent, or if his services are not manual labor or not of a like degree of industrial or commercial importance as manual labor when viewed from the standpoint of individual accomplishment, he is not an employee within *Page 648 the meaning of the Workmen's Compensation Act, as amended in 1929.
In that opinion this court merely advised the Industrial Board that "it is not a very hard problem to determine in a generalway the sort of employees intended to become its (The Workmen's Compensation Act's) beneficiaries, although difficulties may present themselves in applying the general standard to the individual case. In a general way it is an employee whose remuneration is popularly designated as wages rather than salary, whose compensation for services is not munificient, . . . whose labor is manual, or of a like degree of industrial or commercial importance as manual labor when viewed from the standpoint of individual accomplishment." (My italics.)
To emphasize the fact that, by said language, it was laying down general rules to guide, and help the Industrial Board in determining, in various cases, whether or not an applicant for compensation was an "employee," this court supplemented said language as follows: "We should not be understood as indicating that any of these tests are decisive, or that one whose earnings are designated as salary, . . . or whose wage is materially more than $24.00 per week, or whose labor is other than manual is not entitled to compensation under the Act." That language, it seems to me, says, in effect, that said case is not authority for the decision of the majority of this court.
This court said further in that opinion that it was "merelyformulating a concept in a general way of the sort of personthat may be deemed to be an employee within the meaning of theAct." (My italics.) It was not formulating a set of tests by which the Industrial Board could determine whether or not an applicant for compensation was or was not an "employee."
I do not find fault in said opinion; on the contrary I *Page 649 consider it very valuable for the purpose expressed therein, but not for the purpose for which it was relied upon in the majority opinion, to wit, of determining whether or not the Workmen's Compensation Act excludes said groups of employees as beneficiaries thereof.
Sec. 9518, cl. b, Burns Supp. 1929 provides that unless the context of the Act requires otherwise, the word employee "shall include every person, including a minor lawfully in the service of another under any contract of hire or apprenticeship, written or implied, except one whose employment is both casual and not in the usual course of the trade, business, occupation or profession of the employer. . . ." It is my opinion that the context of the Act does not "require otherwise." The context of the Act is consistent and reasonable without a different construction of the word "employee." The legislature not having written into the Act any provisions for the exclusion of said groups of employees as beneficiaries thereof, this court is not authorized to read such provisions into the Act.
The other cases cited in the majority opinion are not applicable to the instant case, because in each of them the decision was based upon the fact that the applicant for compensation owned a large portion of the stock of the defendant corporation, and insofar as the Workmen's Compensation Act was concerned such applicant was considered a partner in the management of the business, and the applicant was not "in the service of another for hire." In the instant case decedent owned a very small part of the stock of the corporation and could not reasonably be considered a "partner" in the management of the business of appellee corporation.
The facts, which were stipulated, indisputably show that decedent was injured while driving an automobile for the purpose of detecting defects in its mechanism, *Page 650 and thereafter advising and supervising the correction of the defects. I readily admit that in so doing he was not engaged in "manual labor," in the ordinary sense of that term, but the Workmen's Compensation Act does not limit its benefits to employees who are engaged in manual labor.
I think the facts set forth in the majority opinion indisputably show that decedent at the time of his injury was "lawfully in the service of another under (a) . . . contract for hire," and that his employment was not casual, but was "in the usual course of the trade, business, occupation or profession of the employer." Sec. 9518, cl. b, supra. Therefore, I think the award of the Industrial Board should have been reversed, and that said Board should have been instructed to render an award in favor of appellant.