Desautel v. North Dakota Workmen's Comp. Bureau , 75 N.D. 405 ( 1947 )

I do not believe the rule of "the law of the case" is properly applicable here. There is a substantial variance between the allegations of the complaint as interpreted by the majority of this court upon the former appeal and the facts proved at the trial. Upon the former appeal the majority of the court agreed that the complaint alleged that the plaintiff, under her contract of employment, remained under the control of her employer during her lunch period. In that decision it is said, "It is also alleged that lunch was to be taken from 12:30 to 1:00 P.M. at the employee's home across the highway from the premises belonging to the institution." In distinguishing this case from the case of Pillen v. Workmen's Comp. Bureau, 60 N.D. 465, 235 N.W. 354, the court said: (72 N.D. 35, 39, 4 N.W.2d 581, 141 A.L.R. 858),

"Dissimilarity appears from the disclosure in the Pillen Case that the employee was working for 60 cents an hour and $2.50 to cover room and board. It does not appear that the employee was required to work between certain hours each day or to take his meals at a certain place. Neither does it appear that the length of time was fixed during which the noon meal was to be obtained although it is referred to in the opinion as the noon hour. In the case before us the employee was not working by the hour but by the day. The contract of employment as pleaded discloses a definite time for the work day to begin and to end. It specifies two half-hour rest periods and a half-hour lunch period. It also provides the specific place at which the noon meal is to be taken."

The decision in the Pillen Case (ND) supra, states that Pillen was paid sixty cents an hour and allowed two dollars and fifty cents a day board and room. The record in the case also shows that he worked, as a part of a construction crew, ten hours a day, six days a week, for at one place in the transcript his pay rate is referred to as six dollars a day and at another as thirty-six dollars a week, and the judgment appealed from in that case decreed that his wages amounted to $36.00 a week. In the circumstances it clearly appears that his hours of employment, and the time and duration of his lunch period were fixed by his employer. The allowance of two dollars and fifty cents a day for board implies a work day of fixed hours. It seems to me therefore that the principal basis of the distinction was that the contract of employment, alleged in this case, provided the specific place at which the noon meal was to be taken.

At the trial of the case this allegation was not sustained by the proof. The record shows the following:

"The Court: Does the institution through any of its officers or employees in any way supervise or direct the activities of an employee while he or she may be absent during the half hour for instance for lunch?

A. (Dr. Lamont) No, we have nothing to say about their activities; they can go off the grounds and they can go where they please. . . .

The Court: They are at liberty to use that time any way they like?

A. Yes, any way they want."

In his comment upon the proof, the trial judge said: "she was given a luncheon hour, or lunch period of thirty minutes from twelve-thirty to one o'clock; that during that time she was at liberty to go where she pleased and do whatever she pleased, she could go any place she liked to get her lunch or she might go without lunch if she saw fit."

I am satisfied that the proof adduced at the trial eliminates all grounds for distinguishing the instant case from the Pillen Case. Upon that ground and upon the grounds stated in the dissent upon the first appeal of this case I think the judgment of the district court should be reversed.