Gulbrandson v. Town of Midland

• Decision Date: 28 March 1949
• Docket Number: 9036,9037.
• Citation: 36 N.W.2d 655,72 S.D. 461
• Parties: GULBRANDSON v. TOWN OF MIDLAND et al.
• Court: South Dakota Supreme Court

36 N.W.2d 655

72 S.D. 461

GULBRANDSON v. TOWN OF MIDLAND et al.

Nos. 9036, 9037.

Supreme Court of South Dakota

March 28, 1949

Blaine Simons and Tom Kirby, both of Sioux Falls for appellants Town of Midland, South Dakota, and Western Surety Co.

Howard B. Crandall and Robert N. Swark, both of Sioux Falls, for appellants Haakon County, South Dakota, and South Dakota Employers Protective Assn.

Philip, Leedom & Driscoll, of Rapid City, for respondent.

SMITH Presiding Judge.

Haakon County and the town of Midland, located in that county, and their respective insurance carriers have filed separate appeals from the judgment of the circuit court affirming an award of workmen's compensation to the widow and children of one James Gulbrandson. Mr. Gulbrandson, a private citizen, was killed September 19, 1946, while responding to the call of a peace officer for aid in attempting to arrest a pair of robbers. The commissioner fixed the compensation at $5,000 and made a separate award against each of the appellants and its respective carrier for $2,500 on the theory that while acting in his capacities as deputy sheriff of Haakon County and town marshal of Midland in attempting the described arrest, one Charles Schofield called Gulbrandson to his aid and thus placed the deceased in the service of both the county and the town. The county and the town each assert that the record fails to reveal a contract of employment between it and Gulbrandson, and they both assail the award as excessive.

The facts are not in dispute. The county commissioners of Haakon County, by resolution, had authorized three deputy sheriffs to be compensated on a statutory fee basis, all as provided by SDC 12.1009. Pursuant to such authority an appointment in writing was delivered to Charles Schofield. Schofield appeared before a Notary Public and subscribed to the official oath endorsed on said appointment, but failed to complete his qualification by filing his appointment and oath in the office of the county auditor as required by SDC 12.1009. At the time of this appointment and during all of the times described herein Schofield was the duly appointed and qualified marshal of the town of Midland, in which capacity he was receiving a monthly salary. One Ratigan, who was the town marshal of Philip, was also appointed a fee deputy sheriff pursuant to the above described resolution.

Shortly after midnight on the 19th of September 1946 Ratigan was notified that two young men who has committed a robbery at Cottonwood were driving toward Philip. Ratigan's effort to take them into custody failed. Whereupon he called Midland in an attempt to reach Schofield. He talked with the deceased, James Gulbrandson, who was then operating the Midland switchboard, and asked him to contact Schofield and advise him of the approach of the robbers. Gulbrandson located Schofield by telephone at the hotel, delivered Ratigan's message, and inquired whether he needed help. Schofield answered in the affirmative. Thereupon Gulbrandson met Schofield at the hotel, and they drove to another part of the town in Gulbrandson's car and enlisted the help of one Mousseau who owned some rifles. Thereafter the three of them repaired to a bridge within the east edge of Midland. They placed the car across the bridge at an angle and took up their positions, Schofield and Mouseau at the west end of the bridge and Gulbrandson at the east end. Almost immediately the men they sought drove toward them from the west. The robbers, however, so maneuvered their car as to push the Gulbrandson car aside and drove on to the east. As they were passing shots were fired and after the event Gulbrandson was discovered mortally wounded. He died on the way to a hospital.

From the wording of the definition of the terms 'employer' and 'employee' found in SDC 64.0102, it follows that to sustain these awards, the record must reveal an express or an implied contract of employment which placed Gulbrandson in the service for pay of the county and town respectively. The statue contains these pertinent provisions:

'(1) 'Employer', shall include the state and any municipal corporation within the state or any political subdivision of this state * * * using the service of another for pay. * * *

'(2) 'Employee', every person, * * * in the services of another under any contract of employment, express or implied * * * except: * * *

'(b) Any official of the state or of any county, municipality, * * * therein, elected or appointed for a regular term of office * * * but deputy sheriffs, constables, marshals policemen, and firemen shall be deemed employees within the meaning of this section; * * *.'

The statutes clothe either a sheriff or a town marshal with authority to call a private citizen into the service of the county or town respectively. By SDC 12.1001 it is provided 'The sheriff shall keep and preserve the peace within his county, for which purpose he is empowered to call to his aid such persons or power of his county as he may deem necessary. * * *' And by SDC 45.1112 it is provided '* * * and each town marshal shall possess, within the jurisdiction of the municipality, all the powers conferred by law upon sheriffs to suppress disorder and keep the peace.'

We are of the opinion that when a private citizen is so impressed into service by a peace officer (cf. SDC 34.1618) a contract of employment results, and the county or town so employing a citizen becomes liable to him for the reasonable value of the service he renders by direction of such officer and therefore one who receives an injury which arises out of and in the course of such an employment is entitled to compensation as provided in the South Dakota Workmen's Compensation Law. Such is the current of authority in other jurisdictions. County of Monterey v. Rader, 199 Cal. 221, 248 P. 912, 47 A.L.R. 359; Tomlinson v. Town of Norwood, 208 N.C. 716, 182 S.E. 659; Mitchell v. Industrial Commission of Ohio, 57 Ohio App. 319, 13 N.E.2d 736; Millard County v. Industrial Commission, 62 Utah 46, 217 P. 974; Village of West Salem v. Industrial Commission of Wisconsin, 162 Wis. 57, 155 N.W. 929, L.R.A.1918c, 1077; Vilas County v. Monk, 200 Wis. 451, 228 N.W. 591 and Balinovic v. Evening Star Newspaper Co., 72 App.D.C. 176, 113 F.2d 505.

In writing of the cases we have cited supra, in Eaton v. Bernalillo County, 46 N.M. 318, 128 P.2d 738, 742, 142 A.L.R. 647, Mr. Justice Sadler said, 'In each of the cases relied upon by appellee and cited, supra, the court was presented with facts affording justification to the sheriff, or his deputy, in impressing the service of a bystander in arresting, securing or conveying some dangerous character suspected of or charged with a violation of the criminal laws. Under such circumstances, it was logical to hold that the person injured while so assisting occupied the status of a deputy sheriff, and, hence, of an employee, thereby entitling him or his dependents, to compensation.' And again at a later point in that opinion in writing of the element of pay, it was said, 'It all comes back to the question whether the services of decedent were commandeered. If so, then we may assume he would be entitled to the reasonable value of his services for the period employed, thus supplying the much discussed wage element.'

We do not understand either of the appellants to seriously contend for a different holding. Each appellant seems ready to admit that the other is obligated to the widow and children of deceased for workmen's compensation, but points to facts and circumstances which it contends demonstrate that the commissioner erred in finding that Gulbrandson was impressed into its service.

The county asserts that Schofield was not a deputy sheriff because he had failed to qualify by filing his appointment and oath in the office of county auditor. Such failure did not deprive him of de facto status. 43 Am.Jur. 235; Williamson v. Lake County et al., 17 S.D. 353, 96 N.W. 702. In our opinion, the public interest impels a holding that if the circumstances furnish an occasion for a de facto peace officer to call for aid, a private citizen is compelled to respond, and a valid contract for service results. In such an emergency a citizen is without opportunity to determine the authority of the officer calling for aid. And neither the officer nor the person is afforded an opportunity to exercise a choice in the matter. The employment is a product of emergent circumstances which have taken control of both the officer and the citizen. The considerations which have influenced a number of courts to hold that a de facto officer cannot make a de jure appointment are nonexistent in the record. Cf. Von Nieda v. Bennett, 117 N.J.L. 231, 187 A. 629, 106 A.L.R. 1324.

The county suggests the point that the offices of town marshal and deputy sheriff are incompatible. It is true that the duty to keep the peace is common to both offices. But that fact, in our opinion, does not render the functions of these offices inconsistent or antagonistic and thus render them incompatible. 42 Am.Jur. 936; Peterson v. Culpepper, 72 Ark. 230, 79 S.W. 783, 2 Ann.Cas. 378.

Further, on the one hand the county points to the fact that Schofield was in the midst of his regular tour of duty as town marshal when he received word of the approach of the robbers, and that all of the events we have described happened within the limits of the town of Midland. On the other hand, the town points to the fact that as Schofield, Mousseau and Gulbrandson were leaving the Mousseau home, Schofield said in substance, and without formality, I am deputizing you, and Mousseau testified that Schofield employed the words 'deputy sheriff' in deputizing them. In calling the named private citizens to his aid,...