Watland v. N.D. Workmen's Comp. Bureau

• Decision Date: 06 June 1929
• Docket Number: No. 5625.,5625.
• Citation: 58 N.D. 303,225 N.W. 812
• Parties: WATLAND et al. v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.
• Court: North Dakota Supreme Court

58 N.D. 303

225 N.W. 812

WATLAND et al.

v.NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.

No. 5625.

Supreme Court of North Dakota.

June 6, 1929.

Syllabus by the Court.

The Workmen's Compensation Bureau, as organized and existing under chapter 162 of the Session Laws of 1919, is not a legal entity subject to suit, and a suit against it is in legal effect a suit against the state.

Where a law authorizes the creation of a bureau and places within its administrative control a fund to be expended for particularly enumerated purposes, and where the act contains no authority to bring suit against the bureau and no consent that the state may be sued is expressed therein, the bureau is not subject to suit.

Express authority given claimants to prosecute appeals to the courts, in certain instances where claims have been denied, is not a consent to suit.

The consent to subject itself to suit, which the state has granted by section 8175 of the Compiled Laws of 1913, is a limited consent and does not embrace suits to recover damages for neglect of official duty.

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

Action by T. Watland and another against the North Dakota Workmen's Compensation Bureau. From an order sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.L. J. Palda, Jr., C. E. Brace, and Robert W. Palda, all of Minot, for appellants.

James Morris, Atty. Gen., and Thomas J. Burke, Asst. Atty. Gen., for respondent.

BIRDZELL, J.

This is an appeal from an order sustaining a demurrer to a complaint. The demurrer challenged the complaint as to the jurisdiction of the person of the defendant and the subject of the action and as to a defect of parties defendant; also, on the ground that it did not state facts sufficient to constitute a cause of action. The action is against the North Dakota Workmen's Compensation Bureau, defendant. The complaint is dated in April, 1925, and charges the defendant to be a bureau in the department of agriculture and labor of the state of North Dakota, created by chapter 162, Session Laws of 1919. It alleges that at the time this act went into effect and for some years prior thereto the plaintiffs, together with one Hrabe, had been and then were copartners conducting the business of buying and selling grain and grinding feed under the firm name and style of Independent Grain Company at Knox, N. D.; that after the passage of the act, which for brevity we will refer to as the Workmen's Compensation Act, and before the date on which it became operative, the partnership agreed that they would comply with the terms of said act and pay the premium which might be fixed by the bureau; that they were thereafter and at all times ready, willing, and able to pay the premium which might be required of them as soon as the bureau should notify them of the amount thereof and demand payment; that they directed the manager of their business to remit the premium as soon as the partnership should be notified of the amount thereof; that shortly after July 1, 1919, when the act went into effect, having received no notice of the amount of the premium due and no demand therefor, the copartnership wrote to the bureau, requesting that proper blanks be sent and that they be notified of the amount of premium due; that soon thereafter they received from the bureau certain blanks which they were required to fill out as a basis for fixing the rate of premium requied to be paid by them; that said blanks were duly and properly filled out, executed, and properly mailed to the bureau. The copartnership, believing that they would receive notice from the bureau as to the amount of premium to be paid, directed the manager to remit the premium as soon as notice of the amount thereof should be received from the bureau; that the copartnership believed they were at all times there after fully insured; that thereafter in November, 1919, one of the plaintiffs and copartners, Watland, inquired of the manager as to the amount of premium paid, and then learned for the first time that no demand had been made for said premium and that it had not been paid; and he thereupon wrote and duly mailed a letter to the bureau inquiring the amount of premium due, and again instructed the manager to remit as soon as the bureau notified him of the amount, and that thereafter the copartnership fully believed they were insured under the act; that on or about February 11, 1920, the bureau notified the copartnership of the amount of premium due, and on or about the 12th day of February, 1920, the amount so demanded, to wit, the sum of $52.16, was remitted; that on or about February 2, 1920, one Dushek was injured while on the premises of the copartnership; that he thereafter filed a claim for compensation with the said bureau, and proceedings were had in which the bureau held the copartnership not insured, but made an award of compensation against the copartners in the amount of approximately $2,500; that thereafter the copartners denied liability on the ground that the injury sustained by Dushek was not sustained in the course of any employment by them; whereupon Dushek brought action in the district court of Benson county upon the award and later recovered a judgment thereon with 50 per cent. penalty; that this judgment upon appeal was modified by striking therefrom the penalty and then affirmed (State ex rel. Dushek v. Watland, 51 N. D. 710, 201 N. W. 680, 39 A. L. R. 1169); that during the pendency of said litigation the said Hrabe was adjudged a bankupt, and by reason of his bankruptcy the plaintiffs were compelled to and did pay the judgment as modified in the full sum of $3,000; that by reason of the facts alleged and by reason of the holding of the bureau that the copartners were not insured, the plaintiffs were damaged in the sum so...