State ex rel. Winston-Dear Co. v. District Court of St. Louis County

Quinn, J. Certiorari to review a judgment of the district court of St. Louis county, in proceedings under the Workmen’s Compensation Act. The facts are not in dispute, and as outlined by the findings of the trial court are as follows: The relator, Winston-Dear Company, is a Minnesota corporation engaged in the business of stripping and removing the surface from iron ore mines in this state. In connection therewith it owns and operates a system of standard gauge railroad tracks, locomotives propelled by steam, railroad cars and other equipment and instrumentalities generally used in such business, but was not engaged in owning or operating such steam railroad as a common carrier. On April 6, 19-19, and for some time prior thereto, relator was engaged in stripping and removing the surface from Sagamore Mine, at Riverton, in this state, where the deceased, Carl G. Westman, was in its employ as a locomotive engineer, running and operating one of relator’s locomotives hauling strippings by trainloads from said mine. On that day while so engaged in the regular course of. his employment as such engineer, in hauling one of relator’s trains so loaded with strippings, said employee was fatally injured by an [183] accident arising ont of and in the course of his employment. The relators had full and immediate notice of all the facts. Westman was 33 years of age, unmarried, and died intestate, leaving him surviving, as his sole 'heirs, his father and mother, the petitioners herein, who were his partial dependents and to whom he had regularly contributed a portion of his monthly earnings, which for some time had been at the rate of $135 per month. At the time of the accident both the employers and employee were subject to the Minnesota Workmen’s Compensation Law and the petitioners are entitled to compensation under its provisions in the sum of $6.50 per week for 300 weeks, and, in addition thereto, $100 on account of burial and funeral expense's. As stated in relator’s brief the only question involved is whether the rights of the parties are controlled by the Workmen’s Compensation Act, or by chapter 187, p. 353, Laws of 1915, the employer, though operating a steam railroad, not being engaged in the business of a common carrier. Our conclusion is in harmony with that of the learned trial court to the effect that the rights of the parties are controlled by the compensation act. It is contended that such conclusion is not sound, and the argument is based upon the provisions of chapter 187, p. 353, Laws of 1915, wherein it is provided that every company or corporation owning or operating “as a common carrier or otherwise” a steam railroad or railway in the state of Minnesota, shall be liable in damages to any employee suffering injury while engaged in such employment; or, in case of death, to such employee’s parents or his next of kin, such injury or death resulting in whole or in part from the negligence of his fellow-servants. The statute is a re-enactment of the prior fellow-servant law as applied to commercial railroads, and it is claimed that the new statute imposes liability upon all companies and corporations operating steam railroads, as common carriers or otherwise, and that the words “or otherwise,” as used in this statute, include a steam railroad not operating as a common carrier. The words “by common carrier or otherwise,” are not found in the original fellow-servant statute. They make their first appearance in the law by the general statutory revision of 1905. Just what the revision commission intended by the use of those words is not quite clear, for they add [184] nothing to the statute not covered by the prior construction of the original act, under which the private carrier was held liable. But, in that vie.w of the ease, the question involved at this time comes down to a narrow compass, and is whether the private road is within the compensation act or liable under chapter 187. 'This is made clear by chapter 193, p. 358, Laws of 1915. It must be conceded, at least we so hold, that both the commou carrier steam railroad, and the private steam railroad not engaged as a common carrier, are included within the provisions of the compensation act, and so remain, unless by affirmative action on their part or by statute they are removed therefrom. Such clearly was the intention of the legislature in the enactment of the compensation law, and a statute similar to our own has been so construed. Minneapolis, etc. Ry. Co. v. Industrial Commission, 153 Wis. 552, 141 N. W. 1119, Ann. Cas. 1914D, 655, and Waldum v. Lake Superior T. & T. Ry. Co. 169 Wis. 137, 170 N. W. 739. The defendant company herein and like private railroads are not included in the express exceptions found in the compensation act, as it was originally enacted or subsequently amended, and it seems clear that, by the enactment of chapter 193, p. 358, Laws of 1915, by which the common carrier by steam railroad was specially taken out of the compensation act, the' legislature intended that such private steam railroads should remain therein. We so construe the statuté, and hold that the private steam railroad not engaged as a common carrier, and which has not given the notice of election not to be bound by the act, as thereby provided, is within the compensation act, and liable to injured employees according to its terms and provisions, precisely as other employers. If notice of an election not to be bound by the act is given by such a railroad company, then it is liable under chapter 187, p. 353, Laws of 1915, for injuries negligently caused by fellow-servants. Such seems to have been the general view of the courts heretofore engaged in administering the compensation law, and in our view is the only conclusion consistent with the proper construction of the statutes. Judgment affirmed.