Mutschler v. Workmen's Comp. Bureau

• Decision Date: 25 September 1941
• Docket Number: No. 6784.,6784.
• Citation: 300 N.W. 24,71 N.D. 264
• Parties: MUTSCHLER v. WORKMEN'S COMPENSATION BUREAU et al.
• Court: North Dakota Supreme Court

71 N.D. 264

300 N.W. 24

MUTSCHLER

v.WORKMEN'S COMPENSATION BUREAU et al.

No. 6784.

Supreme Court of North Dakota.

Sept. 25, 1941.

Syllabus by the Court.

1. The record is examined, and it is held: that plaintiff is entitled to share in the compensation fund administered by the Workmen's Compensation Bureau of this state.

Appeal from District Court, Sheridan County; R. G. McFarland, Judge.

Proceeding under the Workmen's Compensation Act, Comp.Laws Supp. 1925, § 396a1 et seq., by Helen G. Mutschler to share in the compensation sought for the death of Adolph Mutschler, deceased, who was employed by the North Dakota Fire & Tornado Fund division of the North Dakota Insurance Department, opposed by the Workmen's Compensation Bureau of the State of North Dakota, and commissioners P. B. Sullivan, R. H. Walker, and Adolph Michelson. From a judgment in favor of the claimant, the defendants appeal.

Judgment affirmed.

Alvin C. Strutz, Atty. Gen., and A. M. Kuhfeld and Lynn G. Grimson, Asst. Attys. Gen., for appellants.

Victor L. Thom, of Goodrich, and George Thom, Jr., of McClusky, for respondent.

BURR, Chief Justice.

The Bureau appeals from the action of the district court finding plaintiff entitled to share in the compensation fund.

The controversy resolves itself into an issue of fact. The plaintiff is the widow of one Adolph Mutschler, who was accidentally killed October 20, 1938. The evidence is clear that at the time of his death, Mutschler was in the employ of the North Dakota Fire & Tornado Fund division of the North Dakota Insurance Department, as a building inspector, for an indefinite period, with a fixed monthly salary, an expense account for room and board while away from his home town, and a specified mileage to reimburse him for the use of his own automobile for transportation purposes. His home and headquarters were in Goodrich. The territory assigned to him was Sheridan County, but it was left for him to determine for himself what buildings he would inspect, and how and when. The record shows he was vested with wide discretionary powers in respect to his employment and his method of procedure. The only real issue of fact in the case is whether he was in the course of his employment at the time of his death.

It is well established that on October 20, 1938, deceased was traveling in his own automobile with one John Bauer. It is the contention of the defendants that Bauer was engaged in an attempt to advance himself politically, and,...