Besch v. Village of Arden Hills
Can I rely on this case?
Yes — no negative treatment found
- —
Analysis generated from citing opinions in this archive. Not legal advice.
Besch v. Village of Arden Hills
Dissenting Opinion
(dissenting).
I dissent. Mr. Besch was not an employee of any of the parties to this litigation when he was injured. It is only because they have stipulated that he is entitled to compensation under Minn. St. 176.011, subd. 9, that the matter is before us. That statute provides in part as follows:
When struck by an automobile at University Avenue and Robert Street, Mr. Besch was not acting under any civil defense orders, but was purely and simply a volunteer performing the functions of a traffic policeman for the city of St. Paul. The obvious reason his assistance was requested was that he had a uniform, had some previous experience, and was conveniently available through his civil defense connections.
There is no claim that Mr. Besch was performing any “duty” other than directing traffic which was unrelated to civil defense. That it is the city’s responsibility to handle traffic within the municipality can hardly be questioned. Lt. Theodore Donald Wallace of the St. Paul Police Department testified upon cross-examination under the statute that under usual and ordinary circumstances this is the duty of the St. Paul police within the entire city. He conceded that if it were not for civil defense personnel, the city would either have to put on additional officers or find help from other sources in handling parades such as that of the 40 and 8. Mr. Kermit Hedman, who was in charge of the activities, testified that he was not acting as sheriff of Ramsey County when directing parades, and said that although his office had the power to control highways within the city limits it was not exercised except in extreme situations, since this was the responsibility of the St. Paul city police.
At the time of the accident Mr. Besch was not performing any service for the village of Arden Hills, and it had no authority, direction, or control over him. This was not a part of any civil defense program. While the bulletin which went out to local civil defense officials refers to “Police Duty For Parades,” it is couched in terms of a request and not an order and makes no mention of training. Mr. Fish, who accompanied Mr. Besch, testified that they reported on a voluntary basis, were under no obligation to attend the parade, had no supervision from any unit leaders, and training was not discussed.
The director of the Arden Hills Civil Defense group expressly denied that the purpose of calling for volunteers was to furnish training in traffic control for those who needed it. It is clear that in any view of the matter at most Mr. Besch could be expected only to experience practice in traffic control. “Training” requires an element of teaching or instruction which was completely absent according to all the testimony.
To hold that Mr. Besch was an employee of the village of Arden Hills under orders to receive training as a part of a civil defense program may be what the Industrial Commission calls a “pragmatic solution,” but it finds no support in the record. The evidence completely negates the assumption that § 176.011 is applicable. We are not obliged to permit litigants by stipulation to torture the law and the facts in justification of an award which is not authorized by the statute simply because the objective is a worthy one.
Mr. Besch has been seriously hurt while performing a valuable and laudable service for the city of St. Paul. It is to be hoped that some lawful way may be found to compensate him for his injuries. But to condone an application of the statute which is manifestly contrary to its purpose, merely because the parties recognize a moral obligation to compensate respondent out of public funds, is to accept a responsibility we are not required to assume.
I would dismiss the proceedings.
Opinion of the Court
This case is before us on certiorari to review an order of the Indus
From the record it appears that the petitioner was injured while directing traffic in the city of St. Paul while an American Legion parade was in progress. The petitioner is a resident of the village of Arden Hills and a member of the Arden Hills Civil Defense unit. On August 5, 1959, Kermit Hedman, sheriff of Ramsey County and director of the Ramsey County Civil Defense, addressed a communication to the Arden Hills Civil Defense groups requesting that they report for “Police Duty” in connection with an American Legion parade to be held in St. Paul on August 25, 1959. They were requested to report “for duty to Les Juehrs, Chief, RCCD Police or Dep. Chiefs John Longville, Oren Hobbs or Deloy Christopherson at Parade Assembly area below State Capitol” at 6:30 p. m. on the day in question. Other civil defense units in Ramsey County were also requested to take part. Thereafter the petitioner was contacted by Melvan Fish, who was on the telephone committee of the group. The petitioner agreed to participate. On August 25, 1959, eight members of the group, including the director, met at an Arden Hills school. Each of them drove to the school individually but left together for St. Paul. No instructions were given to the members of this group before departing for St. Paul.
When the Arden Hills group arrived at the parade headquarters on the Capitol Approach, they presented themselves to Les Juehrs of the Ramsey County Civil Defense. Mr. Juehrs referred the group to a deputy chief of the Ramsey County unit, who directed the men to
Petitioner was assigned to the assembly area controlled by the Ramsey County officials. He was placed at an intersection and instructed to divert traffic from entering the assembly area. While stationed at this point he assisted the St. Paul police for a short time in setting up a barricade at one of the intersecting streets, after which he returned to his post of duty. Shortly thereafter the petitioner and another volunteer with whom he was working observed that cars were moving around the barricade, causing a traffic jam. To correct this situation they moved to the intersection below the barricade and began directing traffic. This was on the boundary line of the assembly area. There is no direct evidence as to whether this activity was for the purpose of keeping traffic out of the assembly area or the parade route. In any event, while directing traffic the petitioner was injured, causing the disability for which he seeks compensation.
The village of Arden Hills and its insurer, the Insurance Company of North America, agreed to pay compensation benefits to petitioner .subject to the determination of the Industrial Commission as to the employer at the time the accident occurred. The referee held that the petitioner was an employee of the county of Ramsey at the time of the accident. On appeal to the Industrial Commission, the commission adopted the findings of the referee to the effect that the petitioner became temporarily totally disabled for a period of 27 weeks and sustained permanent partial disability as a result of the accident but held that the injuries sustained arose out of and in the course of employment by the village of Arden Hills. It concluded that, since service or training duty under the Minnesota Civil Defense Act might take a volunteer from one political subdivision to another, the munici
Because of the unusual character of the employment, some reference should be made to the provisions of law which give to the volunteer civil defense worker the status of an employee entitled to workmen’s compensation benefits. The Minnesota Civil Defense Act of 1951 (Minn. St. c. 12) contains broad provisions relating to the preservation of lives and property by volunteer civil defense units throughout the state in the event of “enemy attack, sabotage, or other hostile action, or from fire, flood, earthquake or other natural causes, * * * and generally to provide for the common defense and to protect the public peace, * * § 12.02, subd. 1. Section 12.25 provides that each political subdivision of the state is authorized to establish a civil defense organization under a director to be appointed by and subject to the control of the municipal authority. It is contemplated that each local organization shall perform its functions within the territorial limits of the political subdivision within which it is organized. Provision is also made for the establishment of a county civil defense organization which has jurisdiction, so far as applicable here, to coordinate “the activities of and may assist in the training of civil defense organizations” within the county. Recognizing that the civil defense work is wholly voluntary and that provisions should be made for compensation of those sustaining injuries by reason of participation in such work, the legislature adopted § 176.011, subd. 9, which provides in part:
“Voluntary uncompensated workers engaged in peace time in the civil defense program when ordered to training or other duty by the state or any political subdivision thereof, shall be employees. The daily wage of the worker for the purpose of calculating compensation payable under this chapter, shall be the usual going wage paid at the time of such injury or death for similar services where such services are performed by paid employees.”
There is no dispute as to the petitioner’s status as an employee.
The village of Arden Hills contends that at the time he sustained the injuries complained of the petitioner was not under its supervision or control; that it had implicitly consented that he work for the county of Ramsey; that the county of Ramsey accepted his services and was in control of the details of the work he performed; and that further the county of Ramsey received the benefits of his service. It argues that the county must be liable under the loaned-servant doctrine, which is predicated upon the common-law principle that where an employee is loaned with his consent and becomes the servant of another employer for the time being the latter may be liable under the Workmen’s Compensation Act. We have discussed the loaned-servant doctrine in Nepstad v. Lambert, 235 Minn. 1, 50 N. W. (2d) 614, and Pocrnich v. Snyder Min. Co. 233 Minn. 81, 45 N. W. (2d) 794. The tests used in determining the status of an employee as a loaned servant are discussed at length in the Nepstad case and do not require repetition here.
We would be inclined to the view that the fact situation here presents cogent reasons for the application of the loaned-servant doctrine were it not for the fact that we are precluded from applying that doctrine by the stipulation of the parties and the theory upon which the case was tried before the Industrial Commission. It was conceded throughout the proceedings below and in the briefs and arguments here that, if the petitioner is to have the benefits of workmen’s compensation, authority for payment thereof must be derived from
It requires little argument to establish that the city of St. Paul is not responsible for benefits. It is true that the parade was held in the city of St. Paul, and we may assume that the city received benefits from the actual work performed. There is no claim, however, that the city asked that the civil defense corps units throughout the county offer their services in policing the parade. No emergency existed. The parade was not a civil defense function. It involved a local traffic problem for which a large and well-organized municipal police department was primarily responsible. The parade merely provided an opportunity for training those members of the civil defense corps who wished to volunteer. No employer-employee relationship with the city was established within the meaning of § 176.011, subd. 9.
Nor do we find anything in the record which would support the claim that there was a change of employers from the village of Arden Hills to the county of Ramsey. It is not contended that the policing of the parade was the responsibility of the county of Ramsey. The petitioner’s services were not enlisted by Sheriff Hedman pursuant to his authority as the chief peace officer of the county. That authority is provided by § 387.03, which states in part:
“The sheriff shall keep and preserve the peace of his county, for which purpose he may call to his aid such persons or power of his county as he deems necessary.”
It is clear that the petitioner was present in the parade area as a civil defense volunteer pursuant to the call of Mr. Hedman in his capacity as director of Ramsey County Civil Defense. The call was addressed to various civil defense groups in the county pursuant to authority granted by § 12.25, subds. 1 and 2.
“* * * We have about 10 or 12 County civil defense units which have auxiliary police units that we train. In the bulletin we ask them if they want to come in and assist us in the operation of this parade as part of their training program. As Ramsey County civil defense director I have no authority to order them in. But I can ask them to volunteer to come which I do.”
The civil defense program must be considered a recognized governmental function, and responsibility for the training of civil defense personnel is a matter of concern not only to the particular municipal unit of which the volunteer may be a member but to the citizens of the entire state and nation. It is this aspect of the employment which distinguishes it from a private or industrial employment relationship to which the loaned-servant principle might apply. The petitioner has status as an employee only by reason of § 176.011, subd. 9. The authority of the county civil defense director is limited by § 12.25, subd. 2, to coordinating activities and assisting in the training of the employee. The exercise of this authority did not effect a change of employers. The fact that the municipality wherein the volunteer may be
The stipulation of the parties to the effect that at the time the petitioner was injured he was an employee within the meaning of § 176.011, subd. 9, must control our decision. As such an employee, he was a volunteer in training at the time the accident occurred. He as well as other volunteers who reported for duty did not change employers but continued the relationship of employer and employee with the municipalities to which they were attached.
Affirmed.
Because of the stipulation of the parties, it is unnecessary for us to inquire or pass upon the issue of whether or not the petitioner was authorized or directed by his superiors to report for service to the city of St. Paul or Ramsey County or whether in fact the particular activities in which he was engaged come within the purview of Minn. St. c. 12, the Civil Defense Act.
We are not concerned here with § 12.33, which relates to the right of the governor to order personnel of mobile support units from one political subdivision to another and which requires under subd. 3 that the state reimburse the sending political subdivision for payments for injuries, supplies, etc.
Section 12.25, subds. 1 and 2, provide: “Subdivision 1. Each political subdivision of this state is hereby authorized and directed to establish a local organization for civil defense in accordance with the state civil defense plan and program, but no town shall establish a local organization for civil defense without approval of the state director. Each local organization for civil defense shall have a director who shall be appointed forthwith in a city, village or borough by the mayor thereof and in a town by the town board who shall have direct responsibility for the organization, administration and operation of such local organization for civil defense, subject to the direction and control of such governing body.
“Subd. 2. Each county civil defense organization shall have a director and one or more deputy directors. They shall be appointed by the county board. A county organization for civil defense shall have jurisdiction throughout the county outside of any city, village or borough, or of a town which has a local' civil defense organization. In addition to the other powers granted by this subdivision, such county organizations are authorized and directed to coordinate the activities of and may assist in the training of civil defense organizations of political subdivisions within the county, plan for the continuity of county government in cooperation with the county attorney who is authorized and directed to give legal advice to the county organization, acquire equipment necessary in connection therewith, and expend funds provided by the county board out of general revenue funds for such purposes.”
These subjects included Civil Defense and Related Police Work — CD Film; Traffic Control and Police Problems — Film, Traffic Con.; General Police Duties and Law of Arrest; Gun Safety and the Handling of Fire Arms; Police Problems and Evidence; Communications, Sheriff’s Radio — Ham Operators; Rescue and First Aid I; Rescue and First Aid II; Radiological Service; Ramsey County Survival Plan (Civil Defense).
Reference
- Full Case Name
- Joseph J. Besch v. Village of Arden Hills and Others.
- Cited By
- 1 case
- Status
- Published
- Syllabus
- Workmen's compensation — civil defense volunteer from one municipality injured in training exercise in another — municipality responsible for compensation. The sheriff of Ramsey County in his capacity as county director of civil defense, pursuant to authority contained in Minn. St. 12.25, subd. 2, requested that members of civil defense groups throughout the county take part in the policing of a parade in the city of St. Paul as a training exercise. During the parade a member of the Arden Hills Civil Defense unit was injured. Held, under the facts stipulated and established, that the injured employee was entitled to workmen's compensation from the municipality to which he was attached pursuant to § 176.011, subd. 9, and that the fact that the accident occurred in a different municipal area did not alter the character of his employment or effect a change in his status as an employee of the village of Arden Hills.