Schlenk v. Aerial Contractors, Inc.

• Decision Date: 28 June 1978
• Docket Number: No. 9452,9452
• Citation: 268 N.W.2d 466
• Parties: Roger SCHLENK, Plaintiff and Appellant, v. AERIAL CONTRACTORS, INC., James L. Nesheim, Jean A. Nesheim, and Cameron Geritz, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 466

268 N.W.2d 466

Roger SCHLENK, Plaintiff and Appellant, v. AERIAL CONTRACTORS, INC., James L. Nesheim, Jean A. Nesheim and Cameron Geritz, Defendants and Appellees.

Civ. No. 9452.

Supreme Court of North Dakota.

June 28, 1978.

Tenneson, Serkland, Lundberg & Erickson, Ltd., Fargo, for plaintiff and appellant; argued by Ronald H. McLean, Fargo.

Nilles, Hansen, Selbo, Magill & Davies, Ltd., Fargo, and Kruger, Yuill, Feder & Hovland, Fargo, for defendants and appellees; argued by Duane H. Ilvedson and Eugene A. Kruger, Fargo.

ERICKSTAD, Chief Justice.

This is an appeal by Roger Schlenk, plaintiff and appellant, from a summary judgment entered on the 27th day of October, 1977, by the Cass County District Court which dismissed with prejudice his complaint against Aerial Contractors, Inc., James L. Nesheim, Jean A. Nesheim and Cameron Geritz, defendants and appellees.

The basic issues in this case are whether or not willful or intentional injuries inflicted on an employee by his employer or fellow employees are encompassed by the North Dakota Workmen's Compensation Act and whether or not the employee's acceptance of workmen's compensation benefits in North Dakota bars him from bringing a separate legal action against his employer and fellow employees.

On November 24, 1974, Schlenk was employed as a lineman by Aerial Contractors and was working north of Watford City, North Dakota. On that date he was dismantling telephone lines as part of his duties as an employee of Aerial Contractors. He was working alone and operating a wire winder which was used to guide the dismantled telephone wires onto a spool. His clothing apparently became caught in the wires resulting in serious injuries. The wire being wound came from telephone lines being dismantled. Sometimes there were many wires being wound at the same time. The wires contained splices where two pieces of wire were joined by wrapping them around each other. The ends of the wires were cut, leaving sharp edges capable of cutting flesh or catching clothing.

Aerial Contractors was a contributing employer to the North Dakota Workmen's Compensation Bureau and had secured workmen's compensation coverage for Schlenk. On November 29, 1974, Schlenk filed a standard compensation and medical expense claim with the North Dakota Workmen's Compensation Bureau. The Bureau accepted the claim. Schlenk has been receiving various workmen's compensation benefits since the date of the injury and was still receiving them at the time of oral argument.

On May 2, 1977, Schlenk commenced an action against Aerial Contractors, James and Jean Nesheim, and Geritz (hereinafter defendants), seeking damages for the injuries he suffered on November 24, 1974. (The individual defendants are officers of Aerial Contractors, who are co-employees of Schlenk.) Schlenk's complaint alleges intentional, deliberate and willful injury, strict liability in tort, breach of warranty and negligent design and manufacture of the wire winder. On August 11, 1977, the defendants made a motion for summary judgment. On October 24, 1977, a hearing was held before the Cass County District Court and summary judgment was entered on October 27, 1977, dismissing Schlenk's complaint with prejudice. It is from that summary judgment that Schlenk appeals to this court.

Schlenk contends that the wire winder was hazardous. He asserts that to operate it one had to guide the wire onto the spool with his hands. He also contends that the defendants were aware of this dangerous condition but did nothing to alleviate the danger. Instead, they required him to operate the wire winder by himself. These acts of the defendants, he asserts, caused his injuries and were deliberate, intentional and willful acts, thereby outside the scope of the North Dakota Workmen's Compensation Act. The defendants contend that they did not intentionally or willfully injure Schlenk, but that his injuries were the result of an accident covered by the North Dakota Workmen's Compensation Act. Furthermore, they contend that even if their acts could be construed as intentional or willful, there is no exception in the North Dakota Workmen's Compensation Act for intentional or willful injuries inflicted on an employee by his employer or fellow employees.

The first issue before us, then, is whether or not willful or intentional injuries inflicted on an employee by his employer or fellow employees are encompassed by the North Dakota Workmen's Compensation Act, Title 65, North Dakota Century Code.

As the injury and acceptance of the claim by the Bureau occurred in 1974 in this case, the provisions of the Workmen's Compensation Act in effect in 1974 are applicable. This conclusion is mandated by Section 1-02-10, N.D.C.C., which provides:

"No part of this code is retroactive unless it is expressly declared to be so." § 1-02-10, N.D.C.C.

In Hospital Services v. Brooks, 229 N.W.2d 69 (N.D.1975), we said:

"To uphold Brooks' contention we would have to give retrospective effect to the amendment in 1971 of Section 25-09-04, N.D.C.C. Giving retrospective effect to this section would contravene a statute and decisions of this State.

"Section 1-02-10, N.D.C.C., provides that 'no part of this code is retroactive unless it is expressly declared to be so.'

"In Monson v. Nelson, 145 N.W.2d 892, 897 (N.D.1966), we said:

'The general rule of statutory construction that an act of the legislature is presumed to be prospective unless the legislature clearly manifests a contrary intention is well established in this state by case law and statute. See Gimble v. Montana-Dakota Utilities Co., 77 N.D. 581, 44 N.W.2d 198, and cases cited.' " 229 N.W.2d at 71.

In Heddon v. North Dakota Workmen's Comp. Bureau, 189 N.W.2d 634 (N.D.1971), a person was injured in 1961 while in the course of employment. She received workmen's compensation benefits including nursing home costs plus the compensation award for permanent disability. The Bureau in 1965 decided to reduce the benefits payable to her. She appealed to the district court which reversed the decision of the Bureau. The Bureau appealed to this court from that decision and claimed that a 1969 amendment by the Legislature allowed the reduction in benefits. We held that such retroactive application of the statutes was not permissible.

It is clear, therefore, in this case that the provisions of the Workmen's Compensation Act in effect in 1974 are the provisions to be applied in this case. This determination of what provisions are to apply in this appeal is important in that Schlenk asserts that the exception for willful and intentional injuries is set out in Section 65-01-02(8), N.D.C.C. That section was amended by the 1977 Legislature, but for the reasons stated above, that amendment is not applicable to this case.

The relevant part of Section 65-01-02(8), N.D.C.C., which is applicable in this appeal reads:

"Whenever used in this title:

8. 'Injury' shall mean only an injury arising in the course of employment including an injury caused by the willful act of a third person directed against an employee because of his employment, but such term shall not include an injury caused by the employee's willful intention to injure himself or to injure another, nor any injury received because of the use of narcotics or intoxicants while in the course of the employment. . . . "

Schlenk asserts that the language of the section which provides for the exception is that which reads: "but such term shall not include an injury caused by the employee's willful intention to injure himself or to injure another". ¹ This language he contends excludes willful injuries inflicted on an employee by a fellow employee.

The defendants, however, contend that the language of the section relied on by Schlenk does not provide an exception for willful or intentional injuries inflicted on an employee by this fellow employees. Instead, they construe that part of the section to exclude from coverage an employee's injuries which were caused by the injured employee's willful intention to injure himself or another.

We agree with the defendants' contention that the language of the section which reads: "but such term shall not include an injury caused by the employee's willful intention to injure himself or to injure another, nor any injury received because of the use of narcotics or intoxicants while in the course of employment" does not provide an exception to the coverage of the Workmen's Compensation Act for willful or intentional injuries inflicted on an employee by his employer or fellow employees. It only excludes from coverage an employee's injuries which were caused by the injured employee's willful intention to injure himself or to injure another, or that were received because of his use of narcotics or intoxicants while in the course of employment. Such a construction of the language of Section 65-01-02(8), N.D.C.C., is in accord with the language of Section 65-01-11, N.D.C.C., which reads:

"If the bureau or an employer shall claim that an employee is not entitled to the benefits of the North Dakota workmen's compensation law by reason of the fact that his injury was caused by the employee's willful intention to injure himself, or to injure another, or by reason of the voluntary intoxication of the employee, the burden of proving such exemption or forfeiture shall be upon the bureau or upon the person alleging the same. . . . " (Emphasis added.)

In Lippmann v. North Dakota Workmen's Comp. Bureau, 79 N.D. 248, 55 N.W.2d 453 (N.D.1952), in construing Section 65-01-02(8), N.D.C.C., ² this court said:

"In the North Dakota Workmen's Compensation Act the Legislature prescribed only one condition or element that must exist in order to render an injury to an employee compensable under the Act, namely, that the injury must have arisen 'in the course of employment'. This is the only condition prescribed by the statute and this has been recognized by the...