Behr v. Soth
| Decision Date | 18 February 1927 |
| Docket Number | 25,794 |
| Citation | 212 N.W. 461,170 Minn. 278 |
| Parties | HENRY BEHR v. HENRY SOTH |
| Court | Minnesota Supreme Court |
Plaintiff appealed from a judgment of the district court for Freeborn county, Peterson, J. Affirmed.
Members of fire department are within compensation act.
1. Under G.S. 1923, § 4326 (g-1), firemen are within the operation of the workmen's compensation act.
Collision between chief and deputy chief arose in course of their employment.
2. Plaintiff, a fireman, was riding a fire truck to a fire. The chief of the fire department driving to the same fire collided with the truck at a street intersection, injuring plaintiff. Held: The services of the firemen required their presence at the place of accident; the accident arose out of and is the course of their employment notwithstanding that (1) the council had not designated the car used by the chief as fire apparatus, (2) that the chief did not select the shortest route or (3) that the accident arose out of a street risk.
Plaintiff could seek compensation from his employer or from the chief.
3. Under G.S. 1923, § 4291 (1), plaintiff, the fireman, had a right to seek compensation from his employer, the city, or damages from the chief who was a third party engaged in a common enterprise, but not both.
Third party clause construed to include an employe.
Plaintiff could not deny his election to take compensation.
4. Upon the facts stated in the opinion the plaintiff was estopped from denying an election to take compensation.
Where an employe pursues the employer for compensation under the mistaken impression that the law afforded him no other remedy or an additional remedy, equity, in the absence of injury to others or of facts creating an estoppel, may relieve him from his apparent election.
Election of Remedies, 20 C.J. p. 19 n. 34; p. 22 n. 44, 45; p. 23 n 46; p. 25 n. 47; p. 29 n. 73; p. 37 n. 42, 44, 46.
Workmen's Compensation Acts -- C.J. p. 49 n. 52; p. 77 n. 97; p. 80 n. 25; p. 140 n. 93, 94; p. 141 n. 3.
See note in L.R.A. 1918F, 191; 10 A.L.R. 201; 28 R.C.L. 722; 4 R.C.L. Supp. 1838.
H. H. Dunn and Moonan & Moonan, for appellant.
Meighen, Knudson & Sturtz, for respondent.
Plaintiff appealed from a judgment entered pursuant to an order for judgment notwithstanding a verdict for $20,136.74. The action sounds in negligence and was to recover for personal injuries suffered by plaintiff in a collision at a street intersection, between an automobile driven by defendant, the chief of the fire department at Albert Lea, and a fire truck upon which plaintiff, the assistant chief of the fire department, was riding. The answer alleged that both were employes of the city of Albert Lea and subject to the workmen's compensation act and that plaintiff had elected to proceed under said act. This was denied by the reply.
1. Under the city charter and the constitution of the fire department it is the duty of the chief to command the fire department, and when on duty at a fire to observe that every member does his duty. The charter vests in the council the power to purchase apparatus for the fire department and to determine what its equipment shall be. The department keeps fire trucks and full-time drivers at the station. It is manned by volunteers who are local business men. They catch and ride the trucks to the fires. The chief's place of business is about eight blocks from the station. He has little if any opportunity to catch a truck going to a fire. Defendant received a salary from the city of $25 per month; and plaintiff $20. Duty required defendant to arrive at the fire first, if possible. He owned a car, having a loud horn, which he used in going to fires. On May 27, 1924, both of the parties responded to a fire alarm and while enroute the collision occurred resulting in serious injury to plaintiff.
G.S. 1923, § 4326 (g-1), provides that the word "employe" does not include an official of any city who has been appointed for a regular term of office. Upon this plaintiff bases a claim that the chief of the fire department is an official and hence not subject to the compensation act. Under the charter the chief is appointed annually but may be released at the will of the council. Defendant claims the chief is not appointed for a regular term. We do not find it necessary to pass upon the question because in our opinion a proviso in the statute is controlling. State v. Twin City Tel. Co. 104 Minn. 270, 116 N.W. 835. It reads: "Provided, however, that sheriffs * * * policemen and firemen shall be deemed employes within the meaning of this section." The word "firemen" means those whose duty is to extinguish fires and to protect property and life therefrom. Clearly both the chief and his assistant were "firemen" within the meaning of this statute. Before the word "firemen" was used in the compensation act this court held that a fireman was an employe under the compensation act as it formerly existed. State ex rel. City of Duluth v. District Court, 134 Minn. 28, 58 N.W. 791, Ann. Cas. 1918B, 635; Segale v. St. Paul City Ry. Co. 148 Minn. 40, 180 N.W. 777. See also Hubert v. Granzow, 131 Minn. 361, 155 N.W. 204, Ann. Cas. 1917D, 563.
2. It is claimed that the accident did not arise out of and in the course of the employment as required by G.S. 1923, § 4269. Plaintiff's argument rests upon the suggestion that the city council was required to act affirmatively before a contractual liability could be imposed upon a municipality and that the council which was authorized by the charter to equip the fire department did not designate defendant's care as an authorized vehicle to convey the chief to a fire. It is claimed that he had no right as chief to use his private car and was doing an act wholly personal to himself outside the scope of his employment. In substance the claim is that the council selected a fire chief whose duties were to begin when he arrived at the fire. Our attention its called to G.S. 1923, § 4326 (j), which says:
"Note to cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their services require their presence as a part of such service, at the time of the injury," etc.
But did not the service of both plaintiff and defendant require them to be at the place of the accident? What are the duties of firemen, particularly the chief and his assistant? They are in charge of the department and its equipment. They are charged with the proper handling of fire equipment on the streets. There is a special hazard involved in the operation of fire apparatus greater than involved in the operation of other vehicles. This is true not only of the inherent characteristics of fire apparatus but of any automobile because of the necessary speed involved. Fire apparatus on the way to a fire is not subject to speed regulations or traffic signals. Hubert v. Granzow, 131 Minn. 361, 155 N.W. 204, Ann. Cas. 1917D, 563; Edberg v. Johnson, 149 Minn. 395, 184 N.W. 12. When firemen are going to and from fires it is their duty to see that care is used commensurate with the risk incident to protect themselves and also as far as possible to guard the public from the extraordinary street risks incident to the presence of the department or its vehicles. Defendant was responsible for the general movements of his department upon the streets. Aside from being an assistant to the chief, it was plaintiff's duty to ride the truck to the fire. He was thereby exposed to unusual dangers. It is difficult to see how the employer could escape liability under the act if plaintiff had merely fallen from the truck. It is urged that since the chief drove his car without the council having officially designated it as fire apparatus he was not on duty but outside the scope of his employment. We cannot give our assent to this assertion. The chief's contract of employment carried with it very definite duties including street duties as indicated and also to go to fires which exposed him to dangers not common to the public. He had to travel faster than the public. This exposure was incident to his employment -- was solely because thereof. Having assumed such risks and burdens, the moment he responded to the fire alarm the law also clothed him with the benefits which are also incident to his employment. How was he to go? No conveyance was provided. Again duty commanded, as an incident to his employment, to choose a method that would promptly bring him to a fire. No one can claim that he did not choose wisely. He did the natural and ordinary thing.
It is also claimed that the chief did not choose the shortest route to reach the fire and that if he had done so the collision would not have occurred. This claim is without merit. He was confronted by an emergency. He doubtless acted according to the dictates of his best judgment under the circumstances. Whether his conduct in this respect was such as to constitute negligence we do not consider, but do hold that his selection of his course of travel did not remove him from the scope of employment.
We reach the conclusion that the accident arose out of and in the course of the employment of plaintiff and defendant. The fact that the accident was a street risk does not preclude such conclusion. Hansen v. N.W. Fuel Co. 144 Minn 105, 174 N.W. 726; Bookman v. Lyle C. & R. Eq. Co. 153 Minn. 479, 190 N.W. 984. There are other cases tending to support the result. McDaniel v. City of Benson, 167 Minn. 407, 209 N.W. 26; Bellman v. Northern Minn. Ore Co. 167 Minn. 269, 208 N.W. 802; Beaver City v. Industrial Comm. Utah, 67 Utah , 245 P. 378; Reese v. Nat. Surety Co. 162 Minn. 493, 203 N.W. 442; Workman v. Endriss, 164 Minn. 199, 204 N.W. 641; Lake v. City of...
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