State for Benefit of N. D. Workmen's Compensation Bureau v. Broadway Inv. Co.

• Decision Date: 23 September 1957
• Docket Number: No. 7675,7675
• Citation: 85 N.W.2d 251
• Parties: STATE of North Dakota for the Benefit of the NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU and Duane Houghton, Claimants and Appellants, v. BROADWAY INVESTMENT COMPANY a corporation, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 251

85 N.W.2d 251

STATE of North Dakota for the Benefit of the NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU and Duane Houghton Claimants and Appellants, v. BROADWAY INVESTMENT COMPANY a corporation, Defendant and Respondent.

No. 7675.

Supreme Court of North Dakota.

Sept. 23, 1957.

Rehearing Denied Oct. 14, 1957.

Syllabus by the Court

1. By the provisions of Section 65-0902, NDRC 1943, any employee whose employer has failed to comply with Chapter 4 of the Workmen's Compensation Act, who has been injured in the course of his employment in lieu of proceedings against the employer by civil action in court, may file his application with the Bureau for an award of compensation in accordance with the terms of the Workmen's Compensation Act.

2. The Workmen's Compensation Bureau is charged with the duty and vested with the authority to hear and determine all claims by an injured employee for compensation from the workmen's compensation fund and in the exercise of such power it has full authority to hear and determine all questions within its jurisdiction. Section 65-0503 NDRC 1953 Supp.

3. The Workmen's Compensation Act, being remedial in nature, should be given a liberal construction to accomplish the purpose intended.

4. The Workmen's Compensation Act is to be construed liberally so that its beneficent purposes may not be thwarted by technical refinements of interpretation. This rule applies not only to the Bureau's duty to determine whether an injury of an employee is compensable, but also to its duty to determine who was the employer at the time of such injury.

5. One of the duties imposed upon the Workmen's Compensation Bureau under our statutes is to proceed under Chapter 65-09, NDRC 1943, as amended, to secure payment of an award from an uninsured employer.

6. Section 28-3208, NDRC 1953 Supp., has no application to the commissioners of the Workmen's Compensation Bureau who may make awards without the giving of the notice required thereby.

7. At a hearing the party against whom the proceeding has been instituted under the Administrative Agencies, Uniform Practice Act, shall be afforded the same opportunity to present evidence and to examine and cross-examine witnesses as is permitted to parties to an action in the district court. Section 28-3205(2), NDRC 1943.

8. The evidence in this proceeding is examined and it is held for reasons stated in the opinion that Duane Houghton, the claimant, was not an employee of the Broadway Investment Company, a corporation, at the time of his injury.

Paul M. Sand, Asst. Atty. Gen., for North Dakota Workmen's Compensation Bureau.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for Duane Houghton.

Conmy & Conmy, Fargo, for respondent.

JOHNSON, Judge.

This is a proceeding in which the State of North Dakota for the benefit of the North Dakota Workmen's Compensation Bureau and Duane Houghton seeks to recover an award of $1,740.19 from the defendant under the terms of Chapter 65-09, NDRC 1943, as amended, on the theory that Duane Houghton was an employee of the Broadway Investment Company, an uninsured employer.

A notice of hearing was issued by the Workmen's Compensation Bureau on March 20, 1953, addressed to Duane Houghton, claimant; his attorneys; the Broadway Investment Company; P. T. Mikkelson; Willmar Zitzow; and Alfred Zitzow, as employers. When these proceedings were started, the Workmen's Compensation Bureau did not know and had not ascertained who was the employer or employers of Duane Houghton. The notice stated that it was:

'To determine whether or not the alleged injury is compensable under the North Dakota Workmen's Compensation Act and to determine who was the employer of the claimant on the alleged date of injury and to determine whether or not the alleged employer or employers had North Dakota coverage as provided by law.'

Duane Houghton, 20 years of age, was injured on January 30, 1952, while doing work as a carpenter with a 'skill saw'. At the time of his injury he was working on a duplex being built in Fargo, North Dakota. His injury consisted of traumatic amputation of right fore and middle fingers above proximal interphalangeal joint, resulting in the necessity of the amputation of the right fore and middle fingers. On October 4, 1952, Duane Houghton filed first notice of injury and preliminary application of his claim with the North Dakota Workmen's Compensation Bureau. In his application he listed as employers, Broadway Investment Company, P. T. Mikkelson, Alfred and Willmar Zitzow. On October 30, 1952, Duane Houghton filed a progress report with the North Dakota Workmen's Compensation Bureau in which he named Wilmar and Alfred Zitzow as his employers. The 'Report of Employer' attached to the progress report is in blank.

On March 30, 1955, the North Dakota Workmen's Compensation Bureau by its attorney, one of the Assistant Attorneys General of the State of North Dakota, sent a notice demanding payment of award within thirty days to the Broadway Investment Company. This notice was sent under the provisions of Title 65-09, NDRC 1943. Pursuant to the original notice of March 20, 1953, a hearing was had before Commissioner R. J. Sailer at Fargo, North Dakota. Present at said hearing were Leslie Ike, an officer of the Broadway Investment Company, E. T. Conmy, appearing specially for the Broadway Investment Company and for P. T. Mikkelson; W. L. Zitzow, Alfred Zitzow, Duane Houghton, the claimant, and Myron Bright, representing the claimant. After an extended hearing the Workmen's Compensation Bureau, on March 22, 1955, made its findings of fact, conclusions of law and order for award. Insofar as pertinent to the issues before us it found: that Duane Houghton sustained an injury on January 30, 1952, 'as an employee of and while in the employment of the defendant, Broadway Investment Company'; that he was disabled from January 30, 1952, to April 29, 1952, and that at the said time he was a single man age 20, with no dependents. It also found that the Broadway Investment Company, the alleged employer, had not contributed to the workmen's compensation fund nor had it made any application for coverage, and had not complied with the North Dakota Workmen's Compensation Act as amended; that Houghton was engaged in a hazardous occupation; that P. T. Mikkelson was 'in fact an agent of the Broadway Investment Company, the defendant employer'; that as a result of Duane Houghton's injury, the Bureau incurred expenses amounting to a total of $1,740.19; that Duane Houghton was entitled to benefits under the Workmen's Compensation Act; that the Broadway Investment Company under the provisions of Chapter 65-09, NDRC 1943, is liable for the injury sustained by Duane Houghton and the expenses in connection therewith and made an award accordingly. It further ordered that the Broadway Investment Company pay to the Bureau or the claimant the amount of the award and that if it failed to perfect an appeal from the Workmen's Compensation Bureau's award within thirty days from the date of said award, the Bureau would reduce said award to judgment in favor of the State of North Dakota for the benefit of the Workmen's Compensation Bureau and against the defendant Broadway Investment Company and petition the court for the approval of the same for the amount of the award in accordance with the provisions of Section 65-0903, NDRC 1953 Supp. The bureau made no finding as to its jurisdiction, but it took jurisdiction and made its findings of fact and conclusions of law and order for award.

The Broadway Investment Company appealed from the order for award to the District Court of Cass County, North Dakota, and asked a trial de novo. At the time of the hearing before Commissioner Sailer, Mr. Conmy, on behalf of the Broadway Investment Company and Mr. Mikkelson objected to the jurisdiction of the Bureau to compel the Broadway Investment Company and Mr. Mikkelson to litigate the question as to who was the employer of Duane Houghton, and appeared specially objecting to the jurisdiction. However, Broadway Investment Company and Mr. Mikkelson, without waiving their special appearance, participated in the hearing and examined the witnesses that were called for examination and cross-examination under the statute.

On appeal to the district court, the Broadway Investment Company assigned as error the denial of its objection to the jurisdiction of the Workmen's Compensation Bureau. It also objected to the Bureau's requirement to give testimony. The same objection was made on behalf of P. T. Mikkelson. It further assigned as error that there was no sufficient testimony to support enumerated findings of the Bureau, and that they are contrary to both fact and law; that the Bureau was without jurisdiction to determine this matter because of failure to comply with Chapter 28-32, NDRC 1943, as amended; that its findings and conclusions are erroneous in that there was no sufficient testimony to authorize a variance of the written partnership agreement made by Houghton, and that the undisputed testimony shows that Duane Houghton was not an employee of the Broadway Investment Company, a corporation, at the time of the injury, but was a member of the partnership, which was a subcontractor on a building job.

The District Court, after reviewing the entire record and testimony taken before the Bureau on April 16, 1953, pursuant to the notice of March 20, 1953, concluded that the Bureau was without jurisdiction and also that the testimony failed to show that the claimant was ever hired by or employed by a representative of the Broadway Investment Company or by P. T. Mikkelson; that certain findings of fact enumerated by the Bureau are not supported by the testimony; and further that there was a failure to comply with the prerequisites of Chapter 28-32, NDRC 1943, as to notice of specifications including the making of service on the parties, and concluded as a matter of law that the order...