Mutschler v. Workmen's Compensation Bureau of State
| Decision Date | 25 September 1941 |
| Docket Number | 6784 |
| Citation | 300 N.W. 24,71 N.D. 264 |
| Court | North Dakota Supreme Court |
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, Attorney General, A. M. Kuhfeld and Lynn G. Grimson, Assistant Attorneys General, for appellants.
In an action against the Workmen's Compensation Bureau to recover on account of injury resulting in death, the claimant must show by a preponderance of evidence that the injury causing the death was sustained in the course of employment before an award can be made. Pace v. Workmen's Comp. Bureau, 51 ND 815, 201 NW 348; Kamrowski v. Workmen's Comp. Bureau, 64 ND 610, 255 NW 101; Dehn v. Kitchen, 54 ND 199, 209 NW 364.
No department of the state of North Dakota has the legal or moral right to expend the public funds of the state or any parts of the state or any trust fund administered by any department of the state, for political purposes. Boshaw v. J.J. Newberry Co. 259 Mich. 333, 243 NW 46; Herndon v. S.A. Robertson, etc. Co. (Mo) 59 S.W.2d 75.
A recovery can never be had upon an illegal contract. 1 CJ 957; Collins v. The Florida, 101 U.S. 37, 25 L ed 898.
The servant cannot recover against the master at common law for injuries received in the voluntary performance of an unlawful act. 39 CJ 297; 45 LRA(NS) 378.
If a contract is partly legal and partly illegal and if the contract is indivisible, the illegal portion thereof must destroy the entire contract. Gage v. Fisher, 5 ND 297, 65 NW 809; O'Leary v. Workmen's Comp. Bureau, 62 ND 457, 243 NW 805; Barrager v. Industrial Commission, 205 Wis 550, 238 NW 368.
If the employer's business was merely incidental to what the employee was doing for his own benefit, in such case the injury does not arise out of the course of employment. Ely v. Industrial Accident Commission, 75 Cal App 280, 242 P. 901; Marks' Dependents v. Gray, 251 NY 90, 167 NE 181; Indemnity Ins. Co. of America v. Hoage, 58 F.2d 1074; Ridout v. Rose's Stores, 205 NC 423, 171 SE 642; Hammond v. Keim, 128 Neb 310, 258 NW 478.
Victor L. Thom and George Thom, Jr., for respondent.
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. O'Leary v. Workmen's Comp. Bureau, 62 ND 457, 243 NW 805.
The findings of the trial court have considerable weight. Gotchy v. Workmen's Comp. Bureau, 49 ND 915, 194 NW 663; Dehn v. Kitchen, 54 ND 199, 209 NW 364.
The compensation act must be liberally construed in order to effectuate its purposes. O'Leary v. Workmen's Comp. Bureau, 62 ND 457, 203 NW 805.
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...
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