Fahler v. City of Minot

• Decision Date: 27 June 1923
• Citation: 194 N.W. 695,49 N.D. 960
• Parties: FAHLER v. CITY OF MINOT.
• Court: North Dakota Supreme Court

49 N.D. 960

194 N.W. 695

FAHLER

v.CITY OF MINOT.

Supreme Court of North Dakota.

June 27, 1923.

Syllabus by the Court.

Section 2 of the Workmen's Compensation Act (chapter 162, Session Laws of 1919), which defines “employment” as including employment by the state and all political subdivisions, and which defines “employee” as meaning every person engaged in a hazardous employment under any appointment or contract of hire, is construed, and held to embrace policemen employed by a city.

Section 11 of the same act (Laws 1919, c. 162), which provides that employers who fail to comply with the provisions requiring payment of premiums shall not be entitled to the benefits of the act during the period of noncompliance, “but shall be liable to their employees for damages suffered by reason of injuries sustained in the course of employment,” etc., and that they shall not avail themselves of the defenses of the fellow-servant rule, assumption of risk, and contributory negligence, is construed in the light of cognate provisions and of the policy manifested by the entire act, and it is held, that a noncomplying employer is liable to an injured employee within the act, or to his personal representatives in case of death, where the damages were suffered by reason of injuries sustained in the course of employment, regardless of questions of fault.

Where a city had not complied with the Workmen's Compensation Act and a policeman employed by it was killed in the course of his employment, the city is liable in damages to the personal representatives of the deceased on account of the death so occurring.

Appeal from District Court, Ward County; Geo. H. Moellring, Judge.

Action by Wanie S. Fahler, as administratrix of the estate of Leo S. Fahler, deceased, against the City of Minot. From an order overruling a demurrer to the complaint, plaintiff appeals. Affirmed.John J. Coyle, City Atty., and McGee & Goss, all of Minot, for appellant.

F. B. Lambert and E. R. Sinkler, both of Minot, for respondent.

BIRDZELL, J.

This is an appeal from an order overruling a demurrer to a complaint. The complaint alleges that Leo S. Fahler, while employed by the defendant city as a policeman and while engaged in the performance of his duties as such, met his death while attempting to arrest one Avery Erickson; that the defendant city and Fahler, as its peace and police officer, were subject to the provisions of chapter 162 of the Session Laws for the year 1919 (the Workmen's Compensation Law), but that the defendant city, in violation of the law and of its duty, failed to comply with the provisions of the law, and especially sections 6 and 7 respecting the payment of premiums, and that, being in default, the defendant is not entitled to the benefit of the act during the period of noncompliance and is liable for all damages sustained through injury to or death of its employees in the course of employment. The demurrer presents two questions of law: First, is a policeman an employee within the Workmen's Compensation Act? If so, the second question arises, namely, whether the city, not having complied with the act, is liable in damages to the legal representatives of a deceased employee killed while acting in the course of his employment though through no fault of the city or of any one acting on its behalf.

[1] Section 2 of chapter 162, Session Laws of 1919, defines certain terms which must be taken into consideration in determining whether or not a police officer is an employee within the Compensation Act:

“Employment,” says section 2, “includes employment by the state and all political subdivisions thereof, and all public and quasi public corporations therein, and all private employments.

‘Hazardous employment’ means any employment in which one or more employees are regularly employed in the same business, or in or about the same establishment, except agriculture and domestic service, and any common carrier by steam railroad.

‘Employee’ means every person engaged in a hazardous employment under any appointment or contract of hire, or apprenticeship express or implied, oral or written, including aliens, and also including minors, whether lawfully or unlawfully employed, but excluding any person whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer.

‘Employer’ means the state and all political subdivisions thereof, and all public and quasi public corporations therein, and every person, partnership, association and private corporation, including any public service corporation, and the legal representative of any deceased employer, or the receiver or trustee of a person, partnership, association or corporation, carrying on a hazardous employment.

‘Injury’ means only an injury arising in the course of employment, including an injury caused by the willful act of a third person directed against an employee because of his employment, but shall not include injuries caused by the employee's willful intention to injure himself or to injure another. If the employer claims an exemption or forfeiture under this section the burden of proof shall be upon him.”

In this connection it may be well to notice also section 3783, C. L. 1913, which names the officers of cities incorporated under the commission form of government, as is the city of Minot. Among other officers enumerated is that of chief of police and “one or more policemen.” An exhaustive argument is made in the brief of the appellant, the purpose of which is to demonstrate that a policeman is an officer and not an employee within the Workmen's Compensation Act. In view of the statute last referred to (section 3783) and of numerous decisions to the effect that a policeman is an officer, this much of appellant's argument may be deemed conceded for the purpose of this opinion; so, starting with the premise that a policeman is an officer, we must then inquire whether or not he is an employee within the Workmen's Compensation Act. It will be noted in the above quotations from that portion of the law devoted to the definition of terms that there is an evident tendency toward generalization in definition rather than restriction. For instance, “employment” is defined to include employment by the state, by political subdivisions and by quasi public corporations and private employments, thus apparently leaving no room to infer that any employment was to be excluded. The term “hazardous employment” is defined in similar broad terms to include all employments where one or more employees are regularly employed, excepting only agriculture, domestic service, and common carrier by steam railroad. Similarly, “employee” is defined as every person engaged in a hazardous employment under any appointment, contract of hire, or apprenticeship express or implied, oral or written, etc., thus signifying by the use of the term “appointment” that one may even sustain the relation of employee in the absence of any contractual relation existing between him and his employer. These references will suffice t-o emphasize a distinction which, in our judgment, is apparent on the face of the law under consideration when compared with other acts in our sister states where it has been held that policemen were not workmen or employees within the meaning of their compensation laws.

Perhaps the strongest and most persuasive authority that has been brought to our attention in this connection is that of Mann v. City of Lynchburg, 129 Va. 453, 106 S. E. 371. In the act of Virginia which was under consideration in that case, “employers” were defined to include the state and any municipal corporation within the state or any political subdivision thereof, and the term “employee” was defined to include “every person * * * in the service of another under any contract of hire or apprenticeship written or implied.” The court, in construing this language, said:

“The act, as its title shows, relates to industrial accidents, and its well-known purpose was to substitute for the unsatisfactory common-law remedies a speedier and simpler and more equitable form of relief for personal injuries sustained by persons engaged in hazardous occupations. It would seem clear from the history and purposes and general provisions of the act that the Legislature did not have in mind as beneficiaries any other persons than such as are commonly understood as falling within a contractual relationship of master and servant. It often happens that cities and towns employ large forces of men in connection with municipal undertakings, such as the construction of sewers, the building of streets, the operation of rock quarries, and other similar and more or less hazardous occupations akin to those undertaken by individuals and industrial corporations. The Legislature undertook to make an improvement upon the remedies hitherto existing in cases of employees receiving personal injuries, and who might or might not, according to the particular facts of the case, have a cause of action against the employer on the ground of negligence or breach of duty, and manifestly the idea was that this remedy should be provided for those who theretofore stood in such a relationship as that there might be in cases of negligence a liability on the employer. Griswold v. Wichita, 99 Kan. 502, 162 Pac. 276, L. R. A. 1918F, 187, 189, Ann. Cas. 1917D, 31. The case of a city policeman does not, as we think, fall within the reason and purpose of the act, and this conclusion is greatly strengthened by the language which the Legislature used in its enactment.

It is no longer open to question in this state that a policeman is a public officer. See Burch v. Hardwicke, 30 Grat. (71 Va.) 24, 32 Am. Rep. 640;Smith v. Bryan, 100 Va. 199, 40 S. E. 652;Sherry v. Lumpkin, 127 Va. 116, 102 S. E. 658. And this is the holding generally in other states. See Blynn v. Pontiac, 185 Mich. 35, 151 N. W. 681, 683; Griswold v. Wichita, supra. The act...