State ex rel. Woods v. Hughes Oil Co., 5586.

• Decision Date: 19 August 1929
• Docket Number: No. 5586.,5586.
• Citation: 226 N.W. 586,58 N.D. 581
• Parties: STATE ex rel. WOODS v. HUGHES OIL CO.
• Court: North Dakota Supreme Court

58 N.D. 581

226 N.W. 586

STATE ex rel.WOODS

v.HUGHES OIL CO.

No. 5586.

Supreme Court of North Dakota.

Aug. 19, 1929.

Syllabus by the Court.

The Workmen's Compensation Act of North Dakota (Laws 1919, c. 162) is compulsory, and its provisions become applicable to and fix the correlative rights and obligations of employers and employees in all employments falling within the purview thereof. Such act substitutes the principle of the right to compensation by a workman for an injury sustained in the course of his employment for that of liability on the part of the employer for fault only. Where the employer has complied with the act and paid the required premium, an injured employee, or his dependent in case death ensues, is entitled to compensation out of the workmen's compensation fund, and the employer is relieved from liability; but, when the employer fails to comply with the provisions of the Compensation Act, he becomes and is liable to such injured employee, or his dependents in case death ensues, as prescribed in the act, without regard to any question of fault.

Where an employer has failed to comply with the Workmen's Compensation Act, an employee who sustains injuries compensable under the act, or his dependent in case death has ensued, is afforded one of two remedies: (1) He may maintain a civil action against the employer for the damages sustained; or (2) he may, in lieu of such action, apply to the Workmen's Compensation Bureau for an award against the employer in accordance with the terms of the Compensation Act. In case the latter remedy is pursued, the Workmen's Compensation Bureau is required to hear the claim and to determine the question of liability in the same manner as though the employer had complied with the act, and to make an award accordingly. Such award becomes a liquidated claim against the employer, and is enforceable by means of a civil action in the name of the state for the benefit of the person or persons entitled to the same.

The two remedies so granted by the compensation act are coexistent and continue for the same length of time; they both continue until the right of the action at law is barred by the statute of limitations, and section 15 of the Workmen's Compensation Act which limits the time for presentation of claims, is applicable only to claims for compensation out of the workmen's compensation fund, and has no application to claims presented under section 11 of the act for an award against an employer who has failed to comply with the act.

In the instant case an employee of the defendant company was killed by a railway train while he was engaged in the regular performance of the duties of his employment. The defendant company had failed to comply with the Workmen's Compensation Act, and the widow of the deceased workman applied to the Workman's Compensation Bureau for an award against the employer under section 11 of the Workmen's Compensation Act. It is held that the cause of action against the defendant is one upon an obligation or liability created by a statute (Laws 1919, c. 162), and not one for injuries done to the person of another from which death resulted (sections 8321, 8322, C. L. 1913), and that consequently the limitation of time for the commencement of suit is controlled by section 7375, C. L. 1913, which fixes a six-year period of limitations, and not by section 7377, C. L. 1913, which prescribes a two-year period of limitations.

Whether the person for whom the work is performed has the right to exercise control over the performance thereof and has the right to discharge the workman without liability are important, and generally controlling, factors in determining whether the workman is an independent contractor or a servant. If such rights exist, they have a strong tendency to show that the relation is one of master and servant.

In the instant case the evidence is examined, and it is held that the relator's husband at the time of his death was an employee of the defendant company, and that he sustained the injuries resulting in death in the course of the employment.

When an employer has failed to comply with the North Dakota Workmen's Compensation Act and an injury or death is sustained by an employee through the negligence of one other than the employer or a fellow servant, and in circumstances rendering the employer liable under the Workmen's Compensation Act and also such as to create in the person whose negligence caused the injury or death a legal liability to pay damages therefor, the injured employee, or his dependent in case death ensues, has a right of action against both the tort-feasor and against the employer who failed to comply with the Workmen's Compensation Act.

Each right of action is predicated upon a different basis, and involves different elements of liability; and, in absence of statutory provision to the contrary, there is no such relation between the parties or the causes of action as to entitle the employer to maintain an action against the tort-feasor either in his own right or as a subrogee of the injured employee, or his dependent; consequently a compromise and release by the employee, or his dependent, of the cause of action against the tort-feasor, does not release the employer from, or bar the maintenance of an action against, him to enforce the liability imposed upon him by law for failure to comply with the Workmen's Compensation Act.

Appeal from District Court, Burleigh County; Jansonius, Judge.

Action by the State, on the relation of Sarah E. Woods, against the Hughes Oil Company to enforce an award of the Compensation Bureau in favor of relator for the death of her husband, William J. Woods. From an adverse judgment, plaintiff appeals. Reversed and remanded, with directions

Dullam, Young & Burke, of Bismarck, for appellant.

O'Hare, Cox & Cox, of Bismarck, for respondent.

CHRISTIANSON, J.

This is an action to enforce an award of the Workmen's Compensation Bureau in favor of the relator and against the defendant in the sum of $4,766.91.

The complaint alleges that the defendant is engaged in the business of selling gasoline and other petroleum products in North Dakota and maintains a place for the conduct of such business at the city of Beach in this state; that on May 3, 1923, one William J. Woods was and for some time prior thereto had been in the employ of the defendant company for the purpose of conducting its business in the city of Beach; that such employment was a hazardous occupation under the Workmen's Compensation Law of this state (Laws 1919, c. 162); that on said May 3, 1923, the said Woods, while so employed and while performing the regular duties incident to and in the course of such employment, was instantly killed when the truck which he was driving was struck by a Northern Pacific train at the railroad crossing near Beach; that at said time the defendant had not complied with the provisions of the Workmen's Compensation Act of the state of North Dakota, in that it had not contributed any premium whatsoever to the Workmen's Compensation Fund; that the relator is the widow of the said Wm. J. Woods, and was at the time of his death living with and dependent upon him for support;that said Woods was also survived by a dependent child; that on June 30, 1923, the relator filed with the Workmen's Compensation Bureau a claim for compensation for the death of her husband, then notifying the bureau that she elected to submit her claim against the employer for such death for determination by the bureau; that on September 23, 1927, a hearing was had before the bureau upon such claim, and that the relator and the defendant were present at and participated in such hearing; that on November 4, 1927, the Workmen's Compensation Bureau made an award in the favor of the relator and against the defendant, wherein and whereby the defendant was ordered to pay to the relator the sum of $4,766.91; that due notice of said award was given to defendant on the same day, but that defendant has failed and neglected to pay the relator such award or any part thereof, although more than 30 days have elapsed since defendant was given notice of the making of the award.

The answer admits that defendant was engaged in business as alleged in the complaint; that it had not complied with the provisions of the Workmen's Compensation Act; that the relator is the widow of Wm. J. Woods; that a hearing was had before the Workmen's Compensation Bureau at the time alleged in the complaint, and that the parties were present and participated in such hearing; that the bureau made the award; that the defendant was notified thereof; and that it has failed to comply therewith as alleged in the complaint. The defendant further admits that Woods was killed in a collision between a truck he was driving and a Northern Pacific Railroad train; but it denies that at that time he was an employee of the defendant and that his death occurred in the course of any employment by the defendant. The answer further alleges that the relator, on June 30, 1923, filed an application with the Workmen's Compensation Bureau for payment out of the North Dakota workmen's compensation fund; that said claim was denied and dismissed by an order entered by the bureau on August 14, 1923, and that no appeal was taken from such order. In the answer it is further alleged that no action was commenced by the relator or any person in her behalf against the defendant on account of the death of her husband within two years of May 3, 1923, or at any time until the commencement of the instant case on or about December 20, 1927; that no application for an award against the defendant as a noninsured employer was ever filed with the Workmen's Compensation Bureau by the relator or by any person in her behalf or by any other dependent of said Woods or in behalf of such dependent within one year after May 3, 1923, or at any other time; that by virtue of the foregoing facts the...