City of Fremont v. Lea
| Decision Date | 26 April 1927 |
| Docket Number | 25454 |
| Citation | 213 N.W. 820,115 Neb. 565 |
| Parties | CITY OF FREMONT, APPELLANT, v. FRIEDA LEA, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dodge county: FREDERICK W BUTTON, JUDGE. Affirmed as modified.
AFFIRMED AS MODIFIED.
Brogan Ellick & Raymond and Quintard Joyner, for appellant.
J. C Cook and Dolezal, Spear, Mapes & Stevens, contra.
Heard before GOSS, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
Frieda Lea, hereinafter referred to as plaintiff, presented to the compensation commissioner of Nebraska a claim against the city of Fremont on account of the death of her husband, based on the provisions of the Nebraska compensation act. The claim was, by the commissioner, heard and allowed. The city appealed to the district court for Dodge county, where the action of the compensation commissioner was confirmed, except as to penalty. The defendant now prosecutes a further appeal to this court.
This appeal, thus made, is now to be heard and determined subject to the limitations of the doctrine heretofore adopted and repeatedly announced by this court: "On appeal from the district court to the supreme court in a workmen's compensation case, findings of fact supported by sufficient evidence and findings of fact on substantially conflicting evidence will not be reversed unless clearly wrong." American Smelting & Refining Co. v. Cassil, 104 Neb. 706, 178 N.W. 639. See, also, Tragas v. Cudahy Packing Co., 110 Neb. 329, 193 N.W. 742; Simon v. Cathroe Co., 106 Neb. 535, 184 N.W. 130.
Appellant city here contends that Lea had no compensable status; that the fire department of which he was a member and a representative at the time of his injury was strictly a voluntary organization and constituted no part of the city government; that he was not legally employed by the city; that his death was due to his own wilful negligence; but, if it should be determined that he was an employee of the city of Fremont, then that the fatal injury that he received did not arise out of, or in the course of, such employment.
A brief summary of some of the important events which furnish the setting of the transaction before us may be of assistance. The state firemen's organization, in 1925, held its forty-third annual meeting at Hastings, Nebraska. In accordance with the object of its creation, the program and arrangements of this association for this meeting, as usual, afforded visiting firemen opportunities to inspect, examine, and study modern and improved fire-fighting apparatus, and also to receive instructions in the latest and approved ways of fire fighting and protection against fire. In 1925, as well as for many years prior thereto, the Fremont fire department was represented at this meeting of the state organization by a delegation selected from the membership of the department, consisting in part of nonpaid members, and in part of paid members. It appears from the record that for years it had been apparently an established municipal policy of this city that one or more of the paid members of its fire department should be sent to this state meeting for instruction. Lea, as such, had attended the annual meeting of the state association held in 1924 on full pay, and with the cost of substitute provided for at the expense of the city. Such, indeed, was his situation while in attendance at the Hastings convention in 1925. After arrival at that city with the "Fremont delegation," he was proceeding along the public street to the place of registration, as provided and required by the rules of the state organization, in the immediate company of the chief of his department; and a toy cannon, then under sole control of a third party, was accidentally discharged, which wounded Lea, from the effects of which he died. The toy cannon in question was one which for 20 years or more had been in the possession of the Fremont fire department and was used by it for saluting purposes. Lea was in no manner connected with the operation of the cannon at the time he was injured. Earlier in the morning, however, Lea had been engaged in firing the cannon at Fremont, en route from Fremont to Hastings, and in Hastings. He had, however, discontinued this diversion some time before the injury in controversy was received.
For more than 25 years the city of Fremont has been a city of the first class, having more than 5,000 and less than 25,000 inhabitants. The provisions of its charter appear in chapter 44, Comp. St. 1922. During this period it has been, by charter, empowered to provide for the organization and support of a fire department; to procure fire engines, hooks, ladders, and buckets and other apparatus; to organize fire engine, hook and ladder, and bucket companies, and prescribe rules for duty and the government thereof, with such penalties as the council may deem proper, not exceeding $ 100, and make all necessary appropriations therefor. Comp. St. 1922, sec. 4006.
These express statutory powers are further supplemented by provisions fully empowering the mayor and council to provide, in absence of statutory provisions, whatever details may be necessary for the full exercise of the powers conferred. Comp. St. 1922, sec. 4038. This grant is in the nature of a police power exercisable for public benefit. The fire department, organized thereunder, is organically a part of the city government. It is to be supported by public funds caused by taxation. The relation between the city and the members of the fire department, organized under, and as contemplated by, the provisions of the charter above referred to, was that of master and servant, or public employees. Whether the department should be organized on a volunteer or nonpay basis, or whether as a paid department, or as a mixed volunteer and paid department, was and is a mere matter of detail, a question of administration for the mayor and council to determine. But the matter of compensation, or the absence of it, in no manner affected the extent and character of the powers exercisable by the mayor and council over the organization, or the duty of the members of the fire department to comply with the regulations prescribed by the city.
The mayor and council of the city of Fremont, by the adoption of appropriate ordinances, proceeded to exercise the charter powers above referred to. All the ordinances on the subject of the Fremont fire department do not purport to be set forth at length in the record. Enough appears, however, to sustain the conclusion that this fire department is organized pursuant to, and in harmony with, the charter powers enumerated, and that the chief of the department, as well as the department itself, and the members thereof, are subject to the paramount control and direction of the mayor and council of the city of Fremont. It, therefore, follows that the contention that members of a volunteer fire department, or a fire department of the class to which the city of Fremont belongs, have no public status or lawful connection with the municipal government, and can be regarded only as private individuals acting in their own interest and behalf, cannot be accepted. Members of such departments must be accorded the position or status of municipal servants or employees.
It is an undisputed fact in the record that Lea, at the time of his death, and for more than two years prior thereto, was a paid member of the Fremont fire department, and, as such, served continuously and in good faith under such employment by the city. During this period his compensation had been regularly audited and allowed by the mayor and council and paid him pursuant to such action. At the time of his death, and prior thereto, his rate of pay was $ 115 a month. In view of these facts, we find that his employment was, therefore, within the protection of the Nebraska employers' liability act. Comp. St. 1922, sec. 3038.
Under these facts the city will not be heard to deny the legality of Lea's appointment or employment. City Council of Sheffield v. Harris, 101 Ala. 564, 14 So. 357.
Nor does the fact that the members of the Fremont fire...
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