Sexton v. County of Waseca

*423 Loring, Justice. Certiorari to review a decision of the industrial commission awarding compensation to respondent for personal injuries. The questions presented are whether respondent was lawfully in the employ of the county at the time he ivas injured and whether relators are in a position to present the defense of illegality. September 28, 1940, Arthur Larson was sheriff of Waseca county. He had at that time one paid deputy, who was jailer in charge of 11 or 12 prisoners. The sheriff had approximately 22 special deputies throughout the county who were not on salary. Some of them were deputized in order that they might supervise dance halls and were paid for that service by the proprietors of the halls. Others were deputized for special reasons, such as for the protection of property. A prisoner who had waived extradition was being held at Mo-bridge, South Dakota, on charges originating in Waseca county. Sheriff Larson had planned to take the sheriff of Rice county with him when he went to get the prisoner. The record indicates that all of the special deputies were engaged in personal business of their oavu and not available for the service. It developed that the sheriff of Rice county could not go, so sheriff Larson asked the respondent, municipal judge of the city of Waseca, to accompany him on the trip. He Avas not appointed a deputy sheriff, but Avent along as an aid to the sheriff and was subsequently paid therefor by the county. On the way to Mobridge the car in which he and the sheriff were riding collided with another car, the sheriff Avas killed, and respondent severely injured. The industrial commission aAvarded compensation to respondent as an employe of the county. It is the contention of relators that the employment of respondent as aid and assistant to the sheriff on the trip was incompatible AAdth respondent’s office as municipal judge, that the sheriff had no authority to engage the services of the respondent for the trip, and that the employment Avas against public policy and hence illegal. Relators emphasize the fact that there was, in their opin *424 ion, no emergency which justified the employment and-that the sheriff needed no assistant. It was customary for the sheriff to engage an aid or assistant to go with him on such trips, because alone he could not safely drive the car and keep control of his prisoner. While there was no pressing emergency, yet under the general power of the sheriff to keep and preserve the peace of the county, to pursue and apprehend all felons, execute all process, etc. (Mason St. 1927, § 907), he had ample authority to engage a person to go with him in order that he might safely conduct his prisoner from Mobridge to Waseca. Did respondent’s office of municipal judge render the employment illegal and nullify the sheriff’s action in engaging respondent to accompany him? Respondent was not a deputy sheriff, although a deputy sheriff might have performed the same duties had such deputy accompanied the sheriff. Respondent’s employment was merely incidental to a two days’ trip. Therefore, no question is presented of incompatibility between the office of municipal judge and that of deputy sheriff. Was it then against public policy for the sheriff to employ the municipal judge merely as an aid on the trip ? So far as the county is concerned, it is not in a position to raise that question since it has ratified the employment by paying the respondent’s bill. Reed v. Township of Monticello, 164 Minn. 358, 205 N. W. 258. Certainly the insurer can be in no better position to attack the validity of the hiring than is the employer itself. Schultz v. ICrosch, 204 Minn. 585, 284 N. W. 782. While as a matter of propriety we do not approve of the practice of a municipal judge under normal circumstances taking part in any way in the service of a warrant from his own court, we take the view that in the case at bar neither relator is in a position to question the legality of the employment. Respondent is allowed $100 as attorneys’ fees. Writ discharged and decision affirmed.