Dunn v. North Dakota Workmen's Compensation Bureau

• Decision Date: 22 October 1971
• Docket Number: No. 8730,8730
• Parties: Mabel M. DUNN, Claimant and Respondent, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 181

191 N.W.2d 181

Mabel M. DUNN, Claimant and Respondent, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Defendant and Appellant.

Civ. No. 8730.

Supreme Court of North Dakota.

Oct. 22, 1971.

Syllabus by the Court

A partner in a business is an owner, and is not covered by Workmen's Compensation unless he, as such employer, secures insurance protection against injuries to his own person or for his own death by special contract with the Workmen's Compensation Bureau as provided for in Section 65--07--01, North Dakota Century Code.

Nelson, Mack & Moosbrugger, Grand Forks, for claimant and respondent.

Helgi Johanneson, Atty. Gen., David L. Evans, Asst. Atty. Gen., and L. W. Fraase, Special Asst. Atty. Gen., Bismarck, for defendant and appellant.

STRUTZ, Chief Justice.

This appeal by the North Dakota Workmen's Compensation Bureau is from a judgment of the district court of Grand Forks County entered on July 23, 1970, which judgment ordered the Bureau to pay compensation benefits to the claimant on the ground that the claimant's decedent was an executive officer of Harold's Tire Supply, a business in which the deceased was a partner. The basis of the award was that the deceased, as such executive officer, performed duties of a kind generally performed by employees. With the notice of appeal, the appellant Bureau served specifications of error, setting forth certain errors of law which it asserts were committed by the trial court.

The facts in the case do not seem to be disputed. The decedent was a partner in the business known as Harold's Tire Supply. He spent the entire day on which he died in the shop recapping tires. The work which he performed included the lifting of tires, some of which weighed up to 160 pounds. During the day, he complained to a co-worker of chest pains. Just before quitting time, he said he felt weak. He then sat on a tool kit and thereafter lay on the floor, where he died.

The trial court's decision for the claimant was based on the proposition that the decedent, although a partner in the business, also was an executive officer who performed duties of a kind generally performed by an employee, and that he therefore was not exempt from coverage under Subsection 5 par. b(3) of Section 65--01--02, North Dakota Century Code, which reads:

'(3) Any executive officer of a business concern shall mean only the president, vice-presidents, secretary, or treasurer of a business corporation whose duties are solely those of such executive office, and if an executive officer also performs duties of a kind generally performed by an employee, such employment is not exempt; * * *'

There is but one issue to be decided on this appeal, and that is whether the deceased, as a partner doing the work of an employee, was covered at the time of his death on the ground that he was an executive officer also performing duties of a kind generally performed by an employee, and that his employment therefore was not exempt under the provisions of the law above referred to.

The purpose of the Workmen's Compensation Act as originally enacted in 1919 was to grant sure and certain relief to the wage workers of the State and for their families, without regard to questions of fault and to the exclusion of every other remedy. Sec. 1 of Ch. 162, S.L.1919, now Sec. 65--01--01, N.D.C.C.

Four years after the Workmen's Compensation Act first was enacted, the Legislative Assembly extended coverage of the law to include an employer. The amendment provided:

'Any employer, by special contract with the bureau, may secure insurance protection against injuries to his own person or for his own death when such injury or death occurs in the course of his work in an industry in which he has secured such protection against injuries to his employees.' Sec. 65--07--01,...