The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1923-07-07
From Ward County


Wanie S. Fahler, as Administrator
of the Estate of Leo S. Fahlcr, De-
ceased, Plaintiff and Respondent
City of Minot, a municipal corpor-
alton, Defendant and Appellant.
SYLLABUS:
CD Section 2 of the Workmcn's
Compensation Act (Chapter 1862, SEES
sion Laws of 1919, which defines
Unemployment" as including employ
ment by the state and all political
subdivisions, and which defines Gem
ployce' rs meaning every person
engaged in hazardous employment
under any appointment or contract
of hire, is construed and HELD to
embrace policemen employed by Il
city.
GU Section II Of the same act,
which provides that employers who
fail to comply with the provisions
requiring payment of premiums shall
not be entitled to the benefits of the
act during the period of non-com-
pliance but shall be liable to their
employees for damages suffered by
reason of injuries sustained in the
course of employment" etc, and
that they shall not avail themselves
of the defenses of the fellow servant
rule, assumption of risk and contri-
butory negligence, is construed in the
light of cognate provisions and of
the policy manifested by the entire
act, and it is HELD that non-com-
plying employer is liable to an in
jured employee within the act, or
to his personal representatives in
case of death, where the damages
were suffered by reason of injuries
sustained in the course of employ
ment, regardless of questions Of
fault.
CD Where city had not COM
piled with the Workmen's Compensa-
ton Act and a policeman employed
by it was killed in the course of his
damages to the personal representa-
tives Of the deceased on account of
the death SO occurring.
Appeal from the District Court of
Ward County, Hon. Geo. II. NOEL
ring, Judge.
AFFIRMED.
Opinion of the Court by Birdzell,
John j. Coyle, City Attorney, and
MCGEE & Goss, Minot, North Dakota
Attorneys for Appellant.
+. B. Lambert and E. r. Sinkler,
Minot, North Dakota, Attorneys for
Respondent.
From Ramsey County
Ole Torgerson, Plaintiff and APP
pellant.
Minneapolis, St. Paul and Sault
Ste. Marie Railway Company,
Corporation. Defendant and
Respondent.
SYLLABUS:
l. The demurrer admits the truth
of all we'll pleaded facts, but not
necessarily the differences or con-
illusions drawn therefrom, tho alleg-
ed in the complaint; facts presumed
or reasonably or necessarily inferred
from those alleged are also admitted
Legal conclusions or differences of
fact, which are not presumed or
which may not be reasonably or
necessarily inferred from the facts
alleged, are not admitted by the
demurrer.
2. Where plaintiff, section hand,
was directed to unload grain doors
piled in three piles in a box car
and where, after removing the cen
trail pile, one of the others toppled
over, injuring plaintiff, it is held
for reasons stated in the opinion
that such facts, appearing upon the
face of the complaint, do not con-
stitute actionable negligence on the
part of the defendant, based upon,
(a) failure to furnish a reasonably
safe place in which to work, or CD
to instruct and warn servant as to
the method of work, or of the
danger that pile might fall when
The zone in the middle was removed.
8. Where it appears, on the face
Of the complaint, that the risk or
danger, If any, arises by reason of
the actual prosecution of the work,
because of change in conditions, and
the manner in which the work is
from time to time prosecuted, the
rule that the master must furnish
the servant reasonably safe place
TO work has no application.
4. The duty to warn exists only
when the master possesses know
ledge of risks or dangers, or should,
IN the exercise Of ordinary care for
The servants safety, have such know
ledge, not within the knowledge of
The servants or discernible by the
latter, in the exercise Of ordinary
care. There is no liability for fail
IRE to anticipate danger to 2 SER
Yant or to warn him thereof, unless
fhe masters knowledge Of the danger
or opportunity to have knowledge
thereof, having in mind the masters
primary duty to make inquiry, IS
superior to that Of the servant.
3. It In the duty Of the master to