Wagner v. City of Duluth

Citation300 N.W. 820,211 Minn. 252
Decision Date14 November 1941
Docket NumberNo. 32965.,32965.
PartiesWAGNER v. CITY OF DULUTH.
CourtSupreme Court of Minnesota (US)

211 Minn. 252
300 N.W. 820

WAGNER
v.
CITY OF DULUTH.

No. 32965.

Supreme Court of Minnesota.

Nov. 14, 1941.


Appeal from District Court, St. Louis County; Mark Nolan, Judge.

Action for death by Victoria Wagner, special administratrix of the estate of Dewey Wagner, deceased, against the City of Duluth. From an adverse order, defendant appeals.

Affirmed.

[300 N.W. 821]


Syllabus by the Court.

Dependents of deceased WAP worker, fatally injured in line of duty, who accept compensation for his death pursuant to federal statute, are not precluded thereby, under terms of 3 Mason Minn.St.1940 Supp. § 4272-5(1), from bringing action against a third party whose negligence is alleged to have been the cause of their decedent's death.


Harry E. Weinberg and Albert R. Scanlon, both of Duluth, for appellant.

Fryberger, Fulton & Boyle, of Duluth (C. G. Lindquist, of Duluth, and Westley W. Silvian, of Washington, D. C., of counsel), for respondent.


HILTON, Justice.

Dewey Wagner, a WPA worker, was fatally injured on July 19, 1939, when he was struck by a piece of pavement which slid into the ditch where he was working to remove rock and debris present there as a result of blasting operations conducted by defendant, city of Duluth. That city in association with the Works Progress Administration was engaged in a city wide project to remodel and alter the gas and water mains. The blasting operations, however, were the separate responsibility of the city. Though employed by WPA, decedent was properly helping defendant's employes with the blasting.

This action is brought by Victoria Wagner, decedent's wife, as special administratrix to recover for the city's negligence in causing her husband's death. The answer, after denying negligence and alleging contributory negligence and assumption of risk, contained four allegations which were stricken below as sham and frivolous. In substance these aver that decedent was properly within the scope of his employment by the federal government and that his dependents were, under federal law, entitled to, and are receiving, compensation from that source. Under 3 Mason Minn.St.1940 Supp. § 4272-5(1), defendant claims that this acceptance of compensation is a bar to the bringing of this action. The trial judge, however, took the view that receipt of compensation from the federal government was immaterial, and that the Minnesota workmen's compensation law had no application. It is from the order striking these allegations that this appeal is taken.

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