Desautel v. North Dakota Workmen's Compensation Bureau
| Decision Date | 10 July 1947 |
| Docket Number | 7051. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. The decision of the Supreme Court on appeal is the law of the case on a subsequent trial in the district court, and on a subsequent appeal to the supreme court.
2. Where on an appeal from an order sustaining a demurrer to a complaint the supreme court rules that the complaint does state facts sufficient to constitute a cause of action, such decision of the Supreme Court becomes the law of the case and is conclusive of plaintiff's right to findings and judgment in his favor, if he proves his case substantially as laid in the complaint.
Nels G. Johnson, Atty. Gen., and P. B. Garberg Asst. Atty. Gen., for appellant.
Depuy & Depuy, of Grafton, for respondent.
This is an appeal from a judgment in favor of the claimant in a proceeding under the Workmen's Compensation Act R.C.1943, 65-0101 et seq. The claimant Matilda E. Desautel was an employee in the State Institution for the Feeble-Minded at Grafton. On October 22, 1940, she was injured. Thereafter she presented a claim to the Workmen's Compensation Bureau alleging that her injuries had been sustained in the course of her employment as an employee in the State Institution for the Feeble-Minded. On December 9, 1940, the Workmen's Compensation Bureau made its order dismissing the claim on the ground that the alleged injury was not sustained in the course of employment. Thereupon the claimant appealed from the decision of the Workmen's Compensation Bureau to the District Court of Walsh County. On such appeal the claimant filed a complaint setting forth the facts upon which the claim was based. The Workmen's Compensation Bureau demured to such complaint on the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer and dismissed the proceedings. Thereupon the claimant Desautel appealed to this court and this court reversed the order of the district court and held that the facts set forth in the complaint showed that the injuries sustained by the plaintiff had been sustained in the course of her employment and that the facts stated in the complaint showed that she had a valid claim and cause of action for the disability resulting from her injuries. Desautel v. North Dakota Workmen's Compensation Bureau, 72 N.D. 35, 4 N.W.2d 581, 141 A.L.R. 858.
After the case had been remanded to the district court a trial was had at which both parties appeared and were represented by counsel. The superintendent of the Feeble-Minded Institution and the claimant Desautel were sworn and testified. There is no substantial dispute or conflict in the evidence and in all material matters the testimony conforms substantially to the allegations of the complaint.
The evidence shows that the claimant Desautel commenced work as an attendant in a ward in the Institution in 1933; that she remained in such employment continuously until the time of her injury on October 22, 1940; that it was her duty to supervise the children in her ward and see that they were properly taken care of; that some of the children under her care were bedridden. Under the terms of her employment she commenced work at 6 a. m. and was required to work until about 7:15 p. m. She was allowed three one-half hour periods for rest and refreshment. One in the morning and one in the afternoon. Between these two she was allowed what is denominated a lunch period of one-half hour. This period was not fixed at a definite time. It varied. One week it might be from 11:30 a. m. to 12. Next week it might be from 12 o'clock noon to 12:30 p. m., or it might be from 12:30 p. m. to 1 p. m. The claimant had no control over these periods. They were fixed by the supervisor, and the claimant was required to conform to the hours so fixed.
The superintendent testified that 'because of the proximity of the school to Grafton, because we are in the city limits, a goodly number of the employees prefer to live at their own homes, which is easily understood.' He further testified that when employing personnel he asked the question whether the employee wished to live at the institution or 'to live out', coupled with the statement 'that if you wish to live out we will pay you a certain amount toward your maintenance, if you wish to live in we hire you on a basis of maintenance furnished.' He further testified that about forty-two percent. of the employees of the institution were living out. He testified also that no directions were given to the employees 'living out', as to where their meals should be taken or what they should eat. He testified also that the employee had nothing to do with the fixing of the time for the rest periods; had nothing to say about the times they should be had, and had no choice but to conform to the times that were fixed. He said, 'It was understood that they have to come at a certain time in the morning and we designate when they come and when they leave and when they go home for meals.'
The claimant Desautel was employed on the terms that she would live outside of the institution and not take her meals there. For her work she was paid $41 per month and $15 a month for maintenance. On the day the accident occurred the lunch period assigned to the claimant Desautel ran from 12:30 p. m. to 1 p. m. In accordance with the established custom she left the institution and walked to her home. After she had left the institutional grounds and was nearing her home she stepped into a depression with the result that she fell and fractured her ankle.
It is admitted that the employment was one covered by the Workmen's Compensation Act and that the claimant is entitled to be compensated for any injury sustained in the course of such employment. There is no dispute as to the fact that plaintiff sustained injury or the extent of such injury or the amount she is entitled to recover if the injury was sustained in the course of employment so as to be compensable under the Workmen's Compensation Act.
The evidence shows that during her employment the claimant Desautel had always gone home for her lunch and that there never had been any objection to this on the part of the superintendent or of any one who supervised her work. She testified also that she was always required to be back at active work no later than the expiration of the one-half hour period allowed for lunch. The testimony of the superintendent of the institution shows that he was familiar with the location of claimant's home where she went for lunch and there is no claim that she at any time went to any other place for her lunch. It is clear from the evidence that there was a definite established custom through the years for the claimant to take her lunch at home and that the officers of the institution knew, and must have anticipated that there is where she went for her lunch, and that there is where she could be found if it became necessary to contract her because of any emergency. It is said that the one- half hour lunch period was wholly at plaintiff's disposal for any purpose she might see fit to use it. This ignores certain pertinent facts. According to the superintendent the question of a lunch period entered into, and was discussed at the very inception of, the employment of the various employees in the institution. The claimant was required to go to work at 6 o'clock in the morning and aside from a one-half hour rest period in the morning, she was required to be constantly at her confining work in a ward until the one-half hour period allotted for lunch. That period was denominated the lunch period. She had only one-half hour in which to go to her home, eat her lunch, return to the ward, and take up her work with the children. Necessarily this did not allow for any extended travel. Obviously it was necessary that the claimant make arrangements so that there would be no extended waiting before her lunch was available. There was not even a definite time fixed for the lunch period. The time was under the control of the employer and varied according to the directions given by the supervisor from time to time. Clearly the claimant could not go and shop for lunch at the various restaurants in Grafton or some neighboring town.
In his memorandum decision the trial court said, It is clear from the evidence that the day the accident happened the claimant was following the same practice and custom she had followed throughout the years,--a practice that officers of the institution must reasonably have anticipated she would follow,--a practice in which they had acquiesced and which they at least impliedly had approved throughout the years. On the day the accident occurred she went to the place that by arrangement mutually satisfactory had become recognized and established as the place she would take her lunch.
What is or is not an incident of employment is dependent not only on the original agreement or understanding but upon such modifications as may have been made either expressly or impliedly by the parties; acts which at the beginning of an employment may be outside and not an incident of such employment may as a result of the conduct of the parties during the course of the employment become incidents of the employment. Thomas v. Proctor & Gamble Mfg. Co., 104 Kan 432, 179 P. 372, 6 A.L.R. 1145; Wamhoff v. Wagner...
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