City of Huntington v. Fisher

• Decision Date: 06 April 1942
• Docket Number: No. 27710.,27710.
• Citation: 220 Ind. 83,40 N.E.2d 699
• Parties: CITY OF HUNTINGTON v. FISHER.
• Court: Indiana Supreme Court

220 Ind. 83

40 N.E.2d 699

CITY OF HUNTINGTON

v.FISHER.

No. 27710.

Supreme Court of Indiana.

April 6, 1942.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Icy D. Fisher, claimant, opposed by the City of Huntington, Indiana, employer. From an award of the Industrial Board granting compensation, the employer appealed to the Supreme Court which remanded the case, 39 N.E.2d 139, to the Appellate Court. The Appellate Court reversed the award, and the case is transferred from the Appellate Court under Burns' Ann.St. § 4-215.

Judgment reversed, and cause remanded to Appellate Court for further proceedings.

Superseding opinion in 39 N.E.2d 487.Mart J. O'Malley and Lawrence E. Carlson, both of Huntington, for appellant.

Bowers, Feightner & Palmer, of Huntington, for appellee.

FANSLER, Judge.

The appellee, widow and sole dependent of Isaac Fisher, a member of the Fire Department of the City of Huntington, who was killed while in the discharge of his duty as a city fireman, was granted compensation by the Industrial Board under the Workmen's Compensation Law, Burns' Ann.St. § 40-1201 et seq. The city brought this action in the Appellate Court questioning the lawfulness of the award. The Appellate Court held, on authority of City of Fort Wayne v. Hazelett, 1939, 107 Ind.App. 184, 23 N.E.2d 610, that the appellee was not entitled to compensation. The case comes to this court upon petition to transfer, which questions the correctness of the decision of the Appellate Court. Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, 26 N.E.2d 399.

In the Hazelett case it was pointed out that a city acts in a governmental capacity in maintaining a fire department, and is controlled by statute in hiring and discharging firemen, and that there is a statute providing for a pension system for members of the fire department, and the court concluded that, in view of these facts, firemen are not in the service of a city under a contract of hire within the meaning of the Workmen's Compensation Law. It is said that (page 189 of 107 Ind.App.,page 612 of 23 N.E.2d): ‘CONSIDERING THESE STATUTES TOGETHER, It wOuld seem there was no intent on the part of the Legislature to include members of a city fire department among the persons entitled to the benefits of our Workmen's Compensation Law.’ The opinion was by a divided court. See dissenting opinion of Stevenson, J.

In the Compensation Law, ‘an employer’ is defined to include any municipal corporation using the services of another for pay, and an ‘employee’ is defined to include every person in the service of another under contract of hire. Section 40-1701, Burns' Ind.St.1933, section 16449, Baldwin's Ind.St.1934. It has not been contended that public officers would be within the definition of an employee. It has been consistently held by this court that firemen and policemen are employees and not public officers. The question has arisen in actions seeking to recover for services and in cases involving the constitutionality of statutory provisions giving them a permanent tenure of employment during good behavior. Roth et al. v. State ex rel. Kurtz et al., 1902, 158 Ind. 242, 63 N.E. 460;State ex rel. Ham v. Hulley, Mayor, et al., 1922, 192 Ind. 547, 137 N.E. 177;Freyermuth et al. v. State ex rel. Burns, 1936, 210 Ind. 235, 2 N.E.2d 399;City of Peru et al. v. State ex rel. McGuire, 1937, 210 Ind. 668, 199 N.E. 151;City of...