Burkhardt v. State

• Decision Date: 26 April 1950
• Docket Number: No. 7175.,7175.
• Citation: 42 N.W.2d 670,77 N.D. 232
• Parties: BURKHARDT v. STATE.
• Court: North Dakota Supreme Court

77 N.D. 232

42 N.W.2d 670

BURKHARDT

v.STATE.

No. 7175.

Supreme Court of North Dakota.

April 26, 1950.

Proceeding under the Workmen's Compensation Law by Caroline Burkhardt, claimant, against the state of North Dakota, doing business as the Workmen's Compensation Bureau to recover benefits for death of claimant's husband. The District Court of Stark County, Harvey J. Miller, J., affirmed dismissal of the claim by the Bureau, and claimant appealed. The Supreme Court, Crimson, J., held that dismissal of claim was reversible error on ground that not all interested parties were joined as parties.

Case remanded to District Court with directions in accordance with the opinion.

Syllabus by the Court

1. When a claim is filed with the Workmen's Compensation Bureau under Section 65-0902, N.D.R.C.1943, by one who has been injured in the course of his employment, or his dependents in case death has ensued, for compensation predicated upon an injury alleged to have been sustained in the course of employment against an employer who has failed to comply with Chapter 65-09, N.D.R.C.1943, the Bureau must fix a date for hearing the application and serve notice of hearing upon the alleged employer in the manner provided for service of a summons in a civil action and on other interested parties by registered mail.

Floyd B. Sperry, Golden Valley, Hyland & Foster, Bismarck, attorneys for appellant.

Wallace E. Warner, Attorney General, P. B. Garberg, Assistant Attorney General, attorneys for respondent.

GRIMSON, Judge.

Rudolph Burkhardt died from injuries received in a fall from the roop of a barn which he was helping to construct on the farm of John Schmidt near Richardton, North Dakota. An application was duly made on behalf of the widow, Caroline Burkhardt, for compensation under the Workmen's Compensation Law, Title 65, N.D.R.C.1943. It was claimed that Rudolph Burkhardt was employed by Val V. Messner to work as a carpenter on the building of a barn for John Schmidt. The evidence discloses that a preliminary investigation was made by the bureau and the claim denied without a formal hearing. Thereafter a re-hearing was requested. Such a re-hearing was had. The claim was again denied by the bureau. An appeal was taken to the District Court. The findings of the bureau and its dismissal of the claim were affirmed. From that judgment of the District Court an appeal was taken to this court.

It appears from the evidence that Val V. Messner was a carpenter engaged in the building of barns for farmers in that neighborhood. In that occupation he usually was helped by at least two men, one of whom was Rudolph Burkhardt. He had made no payments to the Workmen's Compensation Fund. John Schmidt was a retired farmer. His barn had been destroyed by fire. He arranged with Messner to build a new one for him. John Schmidt paid no premiums to the Workmen's Compensation Fund. The main question for determination in this case is whether Rudolph Burkhardt was working for Val V. Messner or for John Schmidt at the time of the fatal accident.

Instead of bringing suit in district court these proceedings were brought under Sec. 65-0902, N.D.R.C.1943, which reads as follows: ‘Any employee whose employer has failed to comply with the provisions of chapter 4 of this title, who has been injured in the course of his employment, wheresoever such injury has occurred, or his dependents, in case death has ensued, in lieu of proceedings against his employer by...