O'Leary v. North Dakota Workmen's Compensation Bureau
| Decision Date | 08 March 1932 |
| Docket Number | 5992 |
| Citation | 243 N.W. 805,62 N.D. 457 |
| Court | North Dakota Supreme Court |
Rehearing Denied August 12, 1932.
Appeal from the District Court of Ward County, Lowe, J. From a judgment awarding compensation to the plaintiff on account of the death of her husband, the defendant Workmen's Compensation Bureau, appeals.
Affirmed.
Thomas J. Burke, Assistant Attorney General, for appellant.
If the work of the employee created the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. If the journey would have gone forward, though the business errand had been dropped and would have been cancelled upon failure of the private purpose, the journey is then personal and personal the risk. Marks' Dependents v. Gray, 167 N.E. 181; Cronin v. American Oil Co. (Pa.) 148 A. 476; Scanlon v. Herald Co. 194 N.Y.S. 683; Eby v Industrial Commission, 242 P. 901; McPeck v Travelers Equitable Ins. Co. 55 N.D. 750, 215 N.W. 217; Nagle v. S. Dak. Employers Protective Asso. 228 N.W. 505.
Thomas B. Murphy, for respondent.
This is an appeal from a judgment of the district court of Ward county, awarding plaintiff a recovery against the defendant Compensation Bureau on account of the death of plaintiff's husband, John P. O'Leary.
O'Leary was the cashier of the Foxholm State Bank. Foxholm was a little town about 18 miles northwest of Minot. O'Leary had been the cashier of the bank for some 16 years prior to November 22, 1929. During the greater part of this time he had lived at Foxholm. His salary as cashier was $ 166 per month. Early in 1929, O'Leary found it expedient to move his family to Minot and take up his residence there in order to look after some of his own business. However, he continued as cashier of the bank. During the winter and summer months while residing at Minot, he drove to Foxholm only occasionally as the bank's business required him there. During the fall months it was his practice to go there daily. He aimed to return to Minot each evening after his work at Foxholm was concluded so as to have supper at home at six or six-thirty. After he took up his residence at Minot the matter of his compensation from the bank was readjusted. He received his usual salary during the fall months when he was more actively concerned with the bank's affairs. During the winter and summer months he was paid at the rate of $ 5 per trip to Foxholm on the bank's business. While he lived at Foxholm and thereafter when he lived at Minot, he conducted considerable business that the bank had with its correspondents in Minot. When he lived at Foxholm it was his practice to go to Minot to do this. In November, 1929, he was carrying on some transactions relating to certain of the bank's customers with the Minot Credit Company and the First National Bank of Minot. On the morning of November 22 he conferred with the credit company concerning some of the bank's matters that required attention. It was necessary for him to procure releases of certain mortgages that were involved. He left the office of the company just before noon with the understanding he would return that evening about six o'clock and complete the business then under consideration. He had lunch at home and then apparently started for Foxholm. Sometime that afternoon, the record is silent as to the hour, he met with an accident at a point on the road between Minot and Foxholm about six miles northwest of Minot. The record does not disclose whether he was traveling to or from Foxholm at the time of the accident. He was so seriously injured that he died the next day, November 23rd. At the time of the accident he had in a wallet on his person the mortgage releases required in the transactions with the credit company, concerning which he had conferred with the company on the morning of the 22nd, and a check signed by himself, drawn on the Foxholm bank, payable to the county treasurer of Ward county for certain taxes due from one of the bank's customers and which were required to be paid in order to complete some business matters in which the bank was interested. The bank had sought to comply with the requirements of the compensation act, article 11a, chapter 5, 1925, Supplement, §§ 396a1-396a18, both inclusive, as amended, so as to give the protection of the act to its employees, and to that end had contributed premiums according to the schedules and pursuant to the notices of the defendant Workmen's Compensation Bureau. The bank had submitted a list of its employees, together with a statement of their employment and the salary paid them. O'Leary was listed. His work was described as that of cashier and the compensation bureau fixed the rate of premium for him as an office employee. The premium thus determined was paid by the bank. Nothing, however, was said as to his place of residence and the bureau did not know at the time of the accident that he had moved to and lived at Minot. After his death his widow, the plaintiff, applied to the defendant compensation bureau for compensation pursuant to the terms of the act. The bureau denied the application on the grounds that the injury which resulted in O'Leary's death was not incurred in the course of his employment, and further, that though it was incurred in the course of his employment, the character of his work had not been truthfully and correctly stated by the bank in its application, and so the premium required to be paid to cover employment such as that in which he was engaged at the time of the accident which resulted in his death had not been paid by the bank, and, therefore, there was no coverage. The plaintiff then brought this action in the district court of Ward county and had a judgment. Thereupon defendant perfected this appeal.
The compensation act must be liberally construed in order to effectuate the purposes of its enactment. Section 396a1, 1925 Supplement; Bordson v. North Dakota Workmen's Comp. Bureau, 49 N.D. 534, 191 N.W. 839. The plaintiff has the burden of establishing that the injury resulting in O'Leary's death, and on account of which compensation is claimed, was incurred in the course of his employment. See Pace v. North Dakota Workmen's Comp. Bureau, 51 N.D. 815, 201 N.W. 348; Dehn v. Kitchen, 54 N.D. 199, 209 N.W. 364; Oberg v. North Dakota Workmen's Bureau, 57 N.D. 189, 220 N.W. 923. But the findings of the trial court are presumed to be correct and will not be disturbed unless clearly opposed to the preponderance of the evidence. Gotchy v. North Dakota Workmen's Comp. Bureau, 49 N.D. 915, 194 N.W. 667; Dehn v. Kitchen, 54 N.D. 199, 209 N.W. 364, supra. Generally it has been held that injuries incurred by employees while going to or from the place of employment are not compensable as being incurred in the course of employment. Pillen v. Workmen's Comp. Bureau, 60 N.D. 465, 235 N.W. 354; Schneider, Workmen's Comp. Law (2d ed.) § 263; Bradbury, Workmen's Comp. Law (3d ed.) p. 468. The foregoing rules must be borne in mind in considering the record for the purpose of determining the question as to whether the injury resulting in O'Leary's death, and on account of which compensation is claimed, was incurred in the course of his employment.
O'Leary died the day after the accident. He never recovered consciousness. So far as the record discloses, there were no witnesses to the accident. Accordingly, it is impossible to ascertain just what he was doing when it occurred or the purpose which actuated him, except as these things are disclosed by circumstantial evidence. The defendant contends that the accident occurred on the highway between Minot and Foxholm; that it happened either while O'Leary was going to or from Foxholm, the place of his employment; that he was not then engaged in the business of the bank to such an extent that he would have been upon the highway in furtherance of that business had he not lived in Minot -- in other words, that he was going to or coming from the place of his employment just as any other employee of the bank would have done. The plaintiff, however, insists that the facts and circumstances as disclosed justify the conclusion reached by the trial court that the reason for O'Leary being upon the highway at the time of the accident was the business of the bank; that he ordinarily transacted the bank's business in Minot; that he was doing this on the morning of the accident; that when he left the office of the credit company where he had been in behalf of the bank and the bank's...
To continue reading
Request your trial
-
State v. Lynch
...243 N.W. 814 62 N.D. 450 STATE OF NORTH DAKOTA, Respondent, v. RAYMOND LYNCH, Appellant ... ...