Opinion
File No. 6784
Opinion filed September 25, 1941
Appeal from the District Court of Sheridan County, McFarland, J.
Affirmed.
Alvin C. Strutz, Attorney General, A.M. Kuhfeld and Lynn G. Grimson, Assistant Attorneys General, for appellants.
In an action against the Workmen's Compensation Bureau to recover on account of injury resulting in death, the claimant must show by a preponderance of evidence that the injury causing the death was sustained in the course of employment before an award can be made. Pace v. Workmen's Comp. Bureau, 51 N.D. 815, 201 NW 348; Kamrowski v. Workmen's Comp. Bureau, 64 N.D. 610, 255 NW 101; Dehn v. Kitchen, 54 N.D. 199, 209 N.W. 364.
No department of the state of North Dakota has the legal or moral right to expend the public funds of the state or any parts of the state or any trust fund administered by any department of the state, for political purposes. Boshaw v. J.J. Newberry Co. 259 Mich. 333, 243 N.W. 46; Herndon v. S.A. Robertson, etc. Co. (Mo) 59 S.W.2d 75.
A recovery can never be had upon an illegal contract. 1 CJ 957; Collins v. The Florida, 101 U.S. 37, 25 L ed 898.
The servant cannot recover against the master at common law for injuries received in the voluntary performance of an unlawful act. 39 CJ 297; 45 LRA(NS) 378.
If a contract is partly legal and partly illegal and if the contract is indivisible, the illegal portion thereof must destroy the entire contract. Gage v. Fisher, 5 N.D. 297, 65 N.W. 809; O'Leary v. Workmen's Comp. Bureau, 62 N.D. 457, 243 N.W. 805; Barrager v. Industrial Commission, 205 Wis. 550, 238 N.W. 368.
If the employer's business was merely incidental to what the employee was doing for his own benefit, in such case the injury does not arise out of the course of employment. Ely v. Industrial Accident Commission, 75 Cal.App. 280, 242 P. 901; Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181; Indemnity Ins. Co. of America v. Hoage, 58 F.2d 1074; Ridout v. Rose's Stores, 205 N.C. 423, 171 S.E. 642; Hammond v. Keim, 128 Neb. 310, 258 N.W. 478.
Victor L. Thom and George Thom, Jr., for respondent.
The findings of the trial court are presumed to be correct and will not be disturbed unless clearly opposed to the preponderance of the evidence. O'Leary v. Workmen's Comp. Bureau, 62 N.D. 457, 243 N.W. 805.
The findings of the trial court have considerable weight. Gotchy v. Workmen's Comp. Bureau, 49 N.D. 915, 194 N.W. 663; Dehn v. Kitchen, 54 N.D. 199, 209 N.W. 364.
The compensation act must be liberally construed in order to effectuate its purposes. O'Leary v. Workmen's Comp. Bureau, 62 N.D. 457, 203 N.W. 805.
The Bureau appeals from the action of the district court finding plaintiff entitled to share in the compensation fund.
The controversy resolves itself into an issue of fact. The plaintiff is the widow of one Adolph Mutschler, who was accidentally killed October 20, 1938. The evidence is clear that at the time of his death, Mutschler was in the employ of the North Dakota Fire Tornado Fund division of the North Dakota Insurance Department, as a building inspector, for an indefinite period, with a fixed monthly salary, an expense account for room and board while away from his home town, and a specified mileage to reimburse him for the use of his own automobile for transportation purposes. His home and headquarters were in Goodrich. The territory assigned to him was Sheridan county, but it was left for him to determine for himself what buildings he would inspect, and how and when. The record shows he was vested with wide discretionary powers in respect to his employment and his method of procedure. The only real issue of fact in the case is whether he was in the course of his employment at the time of his death.
It is well established that on October 20, 1938, deceased was traveling in his own automobile with one John Bauer. It is the contention of the defendants that Bauer was engaged in an attempt to advance himself politically, and, therefore, the real reason the deceased was with him was to assist Bauer in furthering his ambition, under the pretense of inspecting schoolhouses, and it is suggested the employment was largely a subterfuge. We find no proof that the employment was sham.
We are not concerned with what was Bauer's purpose on this trip. There is no proof he announced his candidacy for any office, and his name did not appear on any election ballot. The evidence shows that on this trip the deceased did engage in the discharge of his duties within the course of his employment. Whether diligent or dilatory in this work is of no importance, except as it may have a bearing upon the question of pretense or sham. He took no active part in any of the somewhat vague and indefinite actions which are said to constitute political activity on the part of Bauer. Bauer was with him, but whether for companionship, or on a hunting trip, or because he was contemplating political action that fall is immaterial so far as the deceased was concerned.
The trial court found the deceased was doing what he was employed to do, and while so working, was killed by accident. After giving due weight to the findings of that court, we conclude the decision of the trial court finding the plaintiff entitled to share in the compensation fund is correct. The judgment, therefore, is affirmed.
CHRISTIANSON, MORRIS, BURKE, and NUESSLE, JJ., concur.