Aleksich v. Industrial Accident Fund

• Decision Date: 28 April 1944
• Docket Number: 8427.
• Citation: 151 P.2d 1016,116 Mont. 127
• Parties: ALEKSICH v. INDUSTRIAL ACCIDENT FUND.
• Court: Montana Supreme Court

151 P.2d 1016

116 Mont. 127

ALEKSICH v. INDUSTRIAL ACCIDENT FUND.

No. 8427.

Supreme Court of Montana

April 28, 1944

Rehearing Denied Oct. 16, 1944.

Appeal from District Court, Second District, Silver Bow County Jeremiah J. Lynch, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. D. N Aleksich to recover for death of her husband, D. N. Aleksich. From a judgment of the District Court affirming an order of the Industrial Accident Board denying compensation, the claimant appeals and defendant cross-appeals.

Affirmed.

ERICKSON J., dissenting.

Lester H. Loble, Henry Loble, and Albert H. Angstman, all of Helena, for appellant.

M. J. Thomas, of Helena, for respondent.

William A. Brown and Rankin & Acher, all of Helena, as amici curiae on petition for rehearing only.

BENJAMIN E. BERG, District Judge (sitting in place of Justice ADAIR disqualified).

For approximately ten years prior to and at the time of his death, Nick Aleksich was a policeman in the city of Butte, Montana. On February 28, 1937, he was to register for duty at the city jail at 2:50 o'clock P. M. The city jail faces Broadway and is on a corner formed by that street and an alley running north and south that connects with East Park street. Policemen commonly use this alley in traveling from East Park street to the city jail. It was the custom of Nick Aleksich to use this alley way in traveling to and from his work. About 2:20 o'clock in the afternoon of February 28, 1937, Aleksich was on East Park street with the evident intention of soon going through the alley and reporting to the city jail for his shift beginning at 2:50 o'clock P. M. At the time mentioned he was engaged in a conversation with one George Palles concerning the previous arrest of Palles and a fine he had paid for conducting a gambling game in his place of business. Both men were standing near the curb facing north and toward the end of their conversation one Ilija Martinovich, an insane person, shot and instantly killed Aleksich. Martinovich was suffering from delusions of persecution. In his warped mind Aleksich was a "wizard," a man of great powers, who, by supernatural means, had caused him much trouble and misfortune. Since 1915 the city of Butte has been enrolled as an employer under Plan 3 of the Workmen's Compensation Act, Rev.Codes 1935, § 2990 et seq., but it has never paid any premiums to the Industrial Accident Fund for the protection of its policemen. Aleksich left surviving him a widow and two minor children and the widow, on her own and the children's behalf, filed claim for compensation under the provisions of the Workmen's Compensation Act.

The Industrial Accident Board, under the evidence before it, found that Aleksich, at the time of the homicide, was not engaged in any official duty for the city of Butte; that his death did not arise out of his employment and did not happen in the course of his employment; that the city of Butte had not elected to be bound by the Workmen's Compensation Act during the month of February, 1937, and that the Industrial Accident Fund of Montana had not received any premiums out of which compensation could be paid to widows of policemen killed by accident which might have arisen and happened in the course of the employment of such policemen, and denied the claim.

On appeal to the district court of Silver Bow county evidence, in addition to that contained in the record on appeal from the board's decision, was received. The district court found that the fatal injury Aleksich received arose out of and in the course of his employment as such public officer, thus being the opposite of the board's finding on that point. The court concluded that Nick Aleksich in his capacity of policeman was not engaged in or connected with one of the inherently hazardous occupations specified in or contemplated by sections 2848, 2849, 2850 and 2851 of the Revised Codes of 1935, and entered judgment dismissing the claim.

The claimant's and appellant's four specifications of error present but one question: Does the Workmen's Compensation Act afford protection to policemen? We are of the opinion that the law on this question has been determined by the previous decisions of this court, hereinafter cited. The argument of counsel for appellant is predicated on three general premises. 1. That the Workmen's Compensation Act as to public corporations and their employees is exclusive, compulsory and obligatory. 2. Public officers engaged in hazardous occupations are employees. 3. A city policeman is a public officer engaged in a hazardous occupation, and therefore an employee and entitled to the benefits of the Act.

The first premise, at least so far as a city and its employees are concerned, is correct. It is specifically so stated in section 2840, Revised Codes of 1935. It was so held in City of Butte v. Industrial Accident Board, 52 Mont. 75, 156 P. 130, and there further held that the provisions of the Act permitting employers to elect to come under its provisions (now sections 2841 and 2842, Rev.Codes, 1935) did not apply to public corporations; as to them and their employees, the Act is exclusive, compulsory and obligatory.

As to the second premise. Section 2863 defines the word "employee" and in so far as we are here concerned provides:

"'Employee' and 'workman' are used synonymously and mean every person in this state, *** who is in the service of an employer as defined by the preceding section, under any appointment or contract of hire, expressed or implied, oral or written, *** and also including *** all who are connected with or engaged in hazardous occupations of the elected and appointed paid public officers ***."

The preceding section 2862 provides:

"'Employer' means the state and each county, city and county, *** and all public corporations *** and every person *** who has any person in service, in hazardous employment, under any appointment or contract of hire, expressed or implied, oral or written, **."

Counsel for the respondent urges that public officers are not employees or workmen, and that it was not the intention of the legislature to include them within the Act. Certainly the language used in defining the term "employee" is not clear. The limiting language defining the word "employer" in section 2862 embraces only the relationship of master and servant. It includes only employees under appointment or contract of hire. The word "hire" is defined by Webster's New International Dictionary to mean "to engage or purchase labor or services of (anyone) for compensation or wages; as, to hire a servant, an agent or an advocate." The word "hire" denotes the relationship of master and servant arising out of a contract, expressed or implied, and we must assume that the legislature used the word in its ordinary meaning. Officers are not servants. They are neither hired nor discharged at the will of anyone. Their compensation is a salary fixed by law and can be increased or decreased only by legislative enactment. Ordinarily they hold their office during a fixed term. They are neither under the control, direction or command of a superior, but, on the contrary, are invested with a portion of the sovereign functions of government to be exercised for the benefit of the public. Mr. Meacham, in his work on Public Officers, section 1, says: "A public office is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." Walker v. Rich, 79 Cal.App. 139, 249 P. 56; State v. Bond, 94 W.Va. 255, 118 S.E. 276. Unless the statute specifically includes public officers it is generally held, under statutes binding the application to employees under an appointment or contract of hire, a public officer is not included. Parker v. Travelers' Ins. Co., 174 Ga. 525, 163 S.E. 159, 81 A.L.R. 472; Shelmadine v. City of Elkhart, 75 Ind.App. 493, 122 N.E. 878; Werner v. Industrial Comm., 212 Wis. 76, 248 N.W. 793; City of Chicago v. Industrial Comm., 291 Ill. 23, 125 N.E. 705. On several occasions this court has held city policemen to be public officers. State ex rel. Anderson v. Fousek, 91 Mont. 448, 8 P.2d 791, 84 A.L.R. 303; State ex rel. O'Brien v. Mayor of Butte, 54 Mont. 533, 172 P. 134; State ex rel. Quintin v. Edwards, 38 Mont. 250, 99 P. 940.

If the provisions of section 2863 went no further than to say "'Employee' and 'workman' are used synonymously and mean every person in this state *** who is in the service of an employer as defined in the preceding section, under any appointment or contract of hire ***" the interpretation would be simple, since both sections 2862 and 2863 would be consistent and limit their application to a relationship between employer and employee arising out of contract. It is the language added to the above quoted portion of section 2863, namely, "and also including ** all who are connected with or engaged in hazardous occupations of the elected and appointed paid public officers ***" that is confusing. It would have been difficult for the legislature to have chosen more ambiguous language. Certainly this language is pregnant with the view that public officers were not intended to be included but only persons under any appointment or contract of hire, who are connected with or engaged in hazardous occupations of the elected and paid public officers. Then, too, there is the suggestion that if the legislature meant to include public officers it would have simply said, "Including appointed and paid public officers." But we are of the opinion that the construction placed on these same...