Breitwieser v. State

• Decision Date: 26 February 1954
• Docket Number: No. 7406,7406
• Parties: BREITWIESER v. STATE.
• Court: North Dakota Supreme Court

Page 900

62 N.W.2d 900

BREITWIESER v. STATE.

No. 7406.

Supreme Court of North Dakota.

Feb. 26, 1954.

Syllabus by the Court.

1. All matters pertaining to the right of recovery for wrongful death and to whom such recovery shall accrue are governed by the laws of the state where the cause of action arose.

2. Under the wrongful death statute of Minnesota the dependent of an employee who lost his life by the wrongful act of a third party may bring an action for damages against such third party.

3. Under Sec. 65-0109, 1949 Supplement NDRC 1943, the workmen's compensation bureau is subrogated to the rights of a dependent of an employee who has lost his life by wrongful act to the extent of the compensation awarded to the dependent.

Johnson & Rausch, Bismarck (Peterson & Davies, Grand Forks, of counsel), for appellant.

E. T. Christianson, Atty. Gen., Paul M. Sand, Asst. Atty. Gen., Bismarck, for appellee.

GRIMSON, Judge.

J. V. Breitwieser, Dean of the College of Education of the University of North Dakota, on March 7, 1950, while in the course of his employment, received fatal injuries in a Northwest Airlines plane crash in St. Paul, Minnesota, and died immediately. He left surviving him his widow, this appellant, and five children, all of whom were of age.

The University of North Dakota had contributed to the workmen's compensation fund of the State of North Dakota, for the protection of its employees, as provided by the workmen's compensation law, Title 65, NDRC 1943, and also carried for them the extra territorial coverage while working outside the state as provided by Sec. 65-0101, NDRC 1943. On March 27, 1950, Mrs. Breitwieser applied to the North Dakota Workmen's Compensation Bureau for compensation under the provisions of that law on account of the death of her husband upon whom she was wholly dependent.

Before any action was taken on this claim by the Bureau Mrs. Breitwieser instituted proceedings to recover damages for the death of her husband from the Northwest Airlines under Mason's Minnesota Statutes of 1927, 1944 Supp. Vol. 4, Sec. 9657, as amended Act Apr. 20, 1943, c. 538, Sec. 1, M.S.A. Sec. 573.02, governing damages for death by wrongful act. She was his personal representative by virtue of her appointment as executrix of her husband's will. She also was his only dependent. Those negotiations were successful and the Northwest Airlines or its insurance carrier paid her the sum of $10,000, in accordance with the provisions of that law.

Thereafter the Workmen's Compensation Bureau made its order awarding the claimant, Mrs. Breitwieser, compensation of $15.75 per week but, finding that the workmen's compensation fund was subrogated to the rights of Mrs. Breitwieser to the $10,000 received by her from the Northwest Airlines, ordered that no payments should be made until the amount determined by the Bureau to be due to the claimant equals the sum of $10,000.

There is no dispute over the determination of the Workmen's Compensation Bureau as to the amount of weekly payments to which claimant is entitled but issue is taken with the determination of the Bureau that the fund is subrogated to the rights of Mrs. Breitwieser to the $10,000 received under the Minnesota wrongful death statute and to the application of that sum to the compensation due the claimant. It is claimed that in effect such determination amounts to a denial of compensation, as the claimant was 65 years of age and under the award of the Bureau she would not receive any payment from the fund for 12 years and 17 weeks which is beyond her life expectancy.

From this award the claimant, Mrs. Breitwieser, appealed to the district court of Burleigh County. The district court affirmed the award and findings of the Workmen's Compensation Bureau and ordered judgment accordingly. From that judgment the claimant appeals. No question is raised as to the right of the claimant, hereinafter called appellant, to appeal from this award by the Workmen's Compensation Bureau.

The sole issue on this appeal is whether the workmen's compensation fund is entitled to be subrogated to the rights of the appellant to the sum of $10,000, received by her under the wrongful death statute in Minnesota. The determination of that issue involves the consideration of two statutes, the workmen's compensation statute of North Dakota, and the wrongful death statute of Minnesota as they have been construed by the courts of the respective states and their application to the facts in this case.

The North Dakota workmen's compensation law was enacted in 1919 for the purpose of providing sure and prompt relief for workmen injured in hazardous employments and for their dependants. The object was to make an industry carry the damages resulting from injuries therein. Both employer and employee gave up certain common-law rights in order to achieve the objects of the law. Instead of the uncertain action for damages from the employer for injuries received in the employment the act made provisions for the allowance of compensation for such injuries regardless of the question of fault. It then placed on the employer the responsibility of providing a fund out of which the compensation would be paid. He had to contribute premiums in proportion to the hazard existing in his employment as flund by the Workmen's Compensation Bureau, Sec. 65-0401, NDRC 1943, and his liability is limited to that. The fund then became the insurer of the employer for injuries or death occurring in his employment. Provision was also made for suits against third-party wrongdoers responsible for such injuries or death.

On that subject the provision of the North Dakota workmen's compensation law, in force at the time involved in this lawsuit, reads as follows:

'When an injury or death for which compensation is payable under the provisions of this title shall have been sustained under circumstances creating in some person other than the fund a legal liability to pay damages in respect thereto, the injured employee, or his dependents may claim compensation under this title and obtain damages from, and proceed at law to recover damages against, such other person. If compensation is claimed and awarded under this title, the fund shall be subrogated, pro tento [pro tanto] to the rights of the injured employee or his dependents to the extent of amount of compensation paid. The action to recover such damages against such other person shall be brought in the name of the injured employee, or his dependents in the event of his death, in his or in his dependents' own right and name for the balance of compensation due him and as trustee for the workmen's compensation bureau for what it has paid on such claim. Expenses and costs of such litigation shall be prorated between claimant and bureau, should any damages be awarded. If no damages are awarded, the cost of the litigation shall be paid by the employee.' Sec. 65-0109, 1949 Supplement NDRC 1943.

Under this provision of the law if the employee claimed compensation and sued a third party the fund was subrogated pro tanto to the recovery of the employee in such lawsuit.

The purpose of this provision for subrogation is to make the wrongdoer who caused the injury, contribute to the payment of compensation for that injury to employee or his dependents whenever possible. This subrogation is a part of the rights yielded by the employee for the right of speedy compensation without regard to his own fault. The injured employee or his dependents receive compensation allowed by law irrespective of the result of the lawsuit. If recovery is made that reimburses the fund for the compensation allowed the employee or his dependent. Anything recovered above that is retained by the employee or his dependent.

Mrs. Breitwieser could have brought her action in Minnesota without coming under the North Dakota workmen's compensation act. She could not, however, have come under that act except for the contract made by the University and the bureau for extraterritorial protection of her husband.

When Mrs. Breitwieser made her application for compensation under the North Dakota workmen's compensation law she elected to come under that law. She accepted the terms thereof which included the subrogation clause. She was taking advantage of the actions of the University in making contributions to the workmen's compensation fund and providing for extra territorial coverage both of which were to provide speedy compensation for her. She became bound by the law and assumed her obligation as a dependent of her husband.

The rights conferred on employers and employees under workmen's compensation statutes are controlled by the statutes of the state of the primary employment. Betts v. Southern Ry. Co., 4 Cir., 71 F.2d 787; Bradford Electric Co. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026, 82 A.L.R. 696. Those rights are purely statutory and while the provisions of the act are to be construed liberally in favor of the workmen, State v. E. W. Wylie Co., N.D., 58 N.W.2d 76, the intent of the statute must be carried out.

In Gimble v. Montana-Dakota Utilities Co., 77 N.D. 581, 44 N.W.2d 198, 203, the following construction of the subrogation clause from Tandsetter v. Oscarson, 56 N.D. 392, 217 N.W. 660, was quoted with approval:

'If compensation is claimed and awarded, the North Dakota workmen's compensation fund is subrogated to the rights of the injured employee or his dependents to recover against that person. (The third party wrongdoer.) The statute is not ambiguous. It does not say that the workmen's compensation fund shall have the right to recover, it does not extend the right to both parties, but it says the workmen's compensation fund shall be subrogated to the rights of the injured employee, and it follows that all the rights which the injured employee had to bring such action are in law conveyed to the workmen's compensation fund. 'Subrogation in its broadest sense is the...