Shelmadine v. City of Elkhart

• Decision Date: 18 February 1921
• Docket Number: No. 10930.,10930.
• Citation: 129 N.E. 878,75 Ind.App. 493
• Court: Indiana Appellate Court
• Parties: SHELMADINE v. CITY OF ELKHART et al.

75 Ind.App. 493

129 N.E. 878

SHELMADINE

v.CITY OF ELKHART et al.

No. 10930.

Appellate Court of Indiana, Division No. 1.

Feb. 18, 1921.

Appeal from Industrial Board.

Proceeding for compensation under the Workmen's Compensation Act by Lettie M. Shelmadine against the City of Elkhart and the State of Indiana. From an order of the Industrial Board denying compensation, claimant appeals. Order affirmed.

Edward B. Zigler and Walter R. Arnold, both of Elkhart, for appellant.

Verne G. Cawley, of Elkhart, and Ele Stansbury, of Indianapolis, for appellees.

REMY, C. J.

This is an appeal from an order of the Industrial Board denying compensation to appellant for her husband's death, alleged to have been the result of an accident which arose out of and in the course of his employment as policeman. As stated in the order of the Board, compensation was denied on the ground that appellant's decedent was “at the time of his injury and death a public officer, and was not an employé of the city of Elkhart.”

That an employer, as defined by clause (a) of section 76 of the Workmen's Compensation Act (Acts 1919, p. 175), includes municipalities, is not in dispute. Nor is it controverted that appellant's decedent, at the time he received the injuries which resulted in his death, was in the discharge of his duties as policeman. That fact was at the hearing stipulated by the parties. The sole question for our consideration is whether a policeman appointed by the board of metropolitan police commissioners of the city of Elkhart is an employé of the city within the meaning of the term “employé” as used in the Workmen's Compensation Act of this state.

[1] The court will take judicial notice that the city of Elkhart, at the time of the injury and death of appellant's decedent, was a city having a population of between 10,000 and 35,000, and that its police force was established under, and regulated by, the act known as the Metropolitan Police Act of 1897 (Laws 1897, c. 59), as amended by the acts of 1907 (Laws 1907, c. 175), 1909 (Laws 1909, c. 56), and 1911 (Laws 1911, c. 75). Burns' Ann. St. 1914, §§ 9033, 9046. This act provides for a board of metropolitan police commissioners with power to appoint policemen and fix their compensation within certain limitations; such appointees to serve during good behavior. The act also fixes the powers and duties of policemen so appointed.

[2] A public office may be defined as a position to which a portion of the sovereignty of the state attaches for the time being, and which is exercised for the benefit of the public. The most important characteristic which may be said to distinguish an office from an employment is that the duties of the incumbent of an office must involve an exercise of some portion of the sovereign power. Groves v. Barden, 169 N. C. S, 84 S. E. 1042, L. R. A. 1917A, 228, Ann. Cas. 1917D, 316.

It is apparent that the position of one appointed as a policeman by the board of metropolitan police commissioners in accordance with the provisions of said act of 1897 comes within the above definition, and is a public officer. See Hopewell v. State, 22 Ind. App. 489, 54 N. E. 127.

[3] It is urged by appellant, however, that even if it be conceded that appellant's decedent was, at the time he met his death, a public officer, and was discharging his duties as such, still he was an employé of the city within the meaning...