Nyland v. N. Packing Co., 5485.

• Decision Date: 31 March 1928
• Docket Number: No. 5485.,5485.
• Citation: 56 N.D. 624,218 N.W. 869
• Parties: NYLAND v. NORTHERN PACKING CO.
• Court: North Dakota Supreme Court

56 N.D. 624

218 N.W. 869

NYLAND

v.NORTHERN PACKING CO.

No. 5485.

Supreme Court of North Dakota.

March 31, 1928.

Syllabus by the Court.

Where a workman, injured in the course of his employment, elects to proceed under the Workmen's Compensation Act (Laws 1919, c. 162) for compensation, he is thereby precluded from maintaining an action at law against his employer.

Additional Syllabus by Editorial Staff.

Limitation of time by Workmen's Compensation Act, § 15 (Laws 1919, c. 162), for filing claims relates to claims against compensation fund only, and not to award against employer who has not complied with law.

Certified Question from District Court, Grand Forks County; A. T. Cole, Judge.

Action by Torkel Nyland against the Northern Packing Company. The trial court certified a question of law. Question answered, and court ordered to grant a motion to dismiss.Lemke & Weaver, of Fargo, for plaintiff.

H. A. Bronson of Grand Forks, for defendant.

BURKE, J.

[1] Certified question of law from the district court of Grand Forks county. The facts are stipulated in substance as follows: This action was commenced September 2, 1926. The plaintiff working in the course of his employment in defendant's packing plant was injured November 11, 1924. Plaintiff was taken to the hospital and received medical treatment from the 11th day of November until December 25, 1924. He returned to his work at the packing plant on February 11, 1925, and for 17 weeks after his return he was not engaged in his regular labor duties at the plant, but on June 11, 1925, he again assumed his regular duties and has been continuously in the employment of the defendant, receiving from the defendant his regular weekly wage of $24 per week including the time he was disabled and up to the present time. The defendant paid the hospital and doctor bill, amounting to $274.40. At the time of the injury the defendant was not within the provisions of the Compensation Act, not having paid the required premiums during the years 1920 to 1926, inclusive, and which premiums are now in litigation, in an action by the compensation bureau against the defendant. Defendant is within the provision of the Compensation Act for the year 1927, and it is agreed that Exhibit A is a history of claims filed by the plaintiff against the Northern Packing Company with the compensation bureau.

Exhibit A shows that on August 31, 1925, the plaintiff filed a claim with the compensation bureau for injuries received while in the employment of the Northern Packing Company. This claim was dismissed on January 13, 1926, for the reason that the defendant had not contributed to the compensation fund. On February 13, 1926, the plaintiff again filed his claim with the bureau, where it is being considered by the bureau under section 11 of the Compensation Act (Laws N. D. 1919, c. 162), and is still pending. Thereafter, and on the 20th day of December, 1926, and while said claim for damages was pending before the compensation bureau, the plaintiff brought this action in the district court of Grand Forks county, and the question of law certified to this court is as follows: Did the filing of plaintiff's claim and action had thereupon before the bureau, constitute an election by plaintiff and operate as a bar to the prosecution of this action, prior to, and until action upon and liquidation of such claim by the bureau? It is the contention of the plaintiff that the filing of the claim with the compensation bureau was a mere nullity, for the reason that the claim was filed later than one year after the injury happened.

[2] We are of the opinion that there is no merit in this contention. The plaintiff's claim before the bureau is not a claim against the compensation fund, but a claim against the employer. If allowed it will not be paid out of the compensation fund, but must be paid by the employer within 30 days after receiving notice of the amount as fixed and determined by the bureau. The time for filing claims for compensation as provided in section 15 of the act relates to claims against the compensation fund, only, and not to an award against the employer who has not complied with the law. This brings us to the certified question of law, viz., can the plaintiff maintain this action after having elected to proceed under the Workmen's Compensation Act?

In the recent case of Tandsetter v. Oscarson, 217 N. W. 661, we held that the remedy before the bureau of compensation was exclusive. In that case the question was whether the plaintiff could maintain an action against a third party who could not be brought under the Compensation Act after the plaintiff had received an award from the compensation bureau, and we held that he could not, for the reason that the remedy under the statute is exclusive, and all other actions are abolished. Under section 11 employers who fail to pay the premiums required are not entitled to the benefits of the act, and are liable to employees for damages by reason of injuries sustained in the course of employment, and in an action therefor the employer cannot avail himself or itself of the common-law defenses. This is one remedy available to the employee, or under the same section in lieu of proceeding against his employer by civil action in court, he may file his application with the workmen's compensation bureau for an award of compensation in accordance with the terms of the act, and the bureau shall hear and determine such application for compensation in like manner as in other claims before the bureau; but the amount of compensation determined and allowed by the bureau shall be paid by such employer to the person entitled thereto within 30 days after receiving notice of the amount thereof as fixed and determined by the bureau. If the employer fails to pay within 30 days the award shall constitute a liquidated claim for damages against such employer in the amount so ascertained and fixed which together with further costs and attorney's fees may be allowed and recovered in an action in the name of the state for the benefit of the person or persons entitled thereto.

This court had occasion to construe section 11 of the Compensation Act in the case of State ex rel. Dushek v. Watland, 51 N. D. 710, 201 N. W. 680, and therein held that an employee injured in the course of his employment, “whose employer has failed to comply therewith, is afforded one of two remedies: (1) He may maintain a civil action against his employer for the damages suffered; or (2) he may in lieu of such action apply to the workmen's compensation bureau for compensation under the act. In case the latter remedy is pursued the workmen's compensation bureau is required to proceed in like manner as in other claims before the bureau. In other words, the bureau proceeds to determine the question of liability in precisely the same manner as though the employer had complied with ...