Chase, John B.

English

The Research Repository @ WVU (West Virginia University)

Volume 37 Issue 4 Article 15 June 1931 Workmen's Compensation--Application to National Guardsman John B. Chase West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Military, War, and Peace Commons, and the Workers' Compensation Law Commons Recommended Citation John B. Chase, Workmen's Compensation--Application to National Guardsman, 37 W. Va. L. Rev. (1931). Available at: https://researchrepository.wvu.edu/wvlr/vol37/iss4/15 This Recent Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. RECENT CASE COMMENTSthe former. This doctrine has been applied where the money waspaid by the grantee to the grantor by way of a loan to a thirdparty, and the grantee of legal title was held a resulting trusteefor the third party.' The parol evidence to show the land wasbought for another was admitted to show the money was advancedas a loan, thus overcoming the objection that such evidence is in-admissible to prove a parol trust. *Where B promised to conveyone-half interest in his land to C if C would pay one-half theexpenses in pending litigation to acquire the land, and C paid nomoney, there was no resulting trust. The court held such a con-tract to be one for the sale of land within the statute of frauds.!To raise a resulting trust it is necessary that C pay or assume abinding obligation at or before the time of conveyance of legaltitle to B. This requirement was not satisfied in the principalcase. A payment subsequent to conveyance will not attach atrust.8 But a payment after the contract of sale is made, butbefore conveyance, will raise a resulting trust.-AUGUST W. PETROPLUS.WORKMEN'S COMPENSATION - APPLICATION TO NATIONALGUARDSMAN. - The North Carolina Supreme Court, in the caseof Baker v. State,. decided that a North Carolina National Guards-man was an employee of the state within the meaning of theirWorkmen's Compensation Act.' The Act provides that the word"employment" includes all employees of the state and that theword "employee" means every person engaged in any employmentunder any appointment or contract of hire or apprenticeship.The plaintiff was injured while engaged upon his duties asNational Guardsman. He was a regularly enlisted member ofthat organization, having signed an enlistment contract. He re-ceived fifty cents per week from the state for his services as amilitiaman. It was insisted that the plaintiff was not an em-ployee of the state within the meaning of the act, since his status5 Scott, Resulting Trusts Arising Upon the Purchase of Land (1927) 40HARv. L. REv. 669.6 McDonough v. O'Neill, 118 Mass. 92 (1873)."Woods v. Ward, 48 W. Va. 652, 37 S. E. 520 (1900).8 Currence v. Ward, 43 W. Va. 367, 27 S. E. 329 (1897).9 Bright v. Knight, 35 W. Va. 40, 13 S. E. 63 (1891).:'Baker v. State, 156 S. E. 917 (N. C. 1931).2 North Carolina Pub. Laws 1929, e. 120, § 2(a).1Chase: Workmen's Compensation--Application to National GuardsmanPublished by The Research Repository @ WVU, 1931WEST VIRGINIA LAW QUARTERLYwas not contractual in that the relation of master and servantwas not established in accordance with recognized legal standardsThe court thought that the relation of an employer and employeemay exist, as contemplated by the Compensation Act, otherwisethan in strict accordance with legal standard.' The state hadwaived its sovereign rights and its exemption of liability and hadvoluntarily become a self-insurer of its compensation liability.The West Virginia Compensation Act provides that "Allpersons in the service of the employers as herein defined andemployed by them for the purpose of carrying on the industry,business or work in which they are engaged, are subject to thisact" Providing our state waived its immunity and the questionarose as it did in the Baker case our court would hardly be facedwith the difficult problem of construction that confronted theNorth Carolina Court. It would seem that our statute is morefavorable to the imposition of liability.Perhaps sound policy may warrant the state's assumption ofthis burden but circumstances might arise wherein this ordinarilyslight responsibility would assume great proportions. What ifthe militia were called upon to quell a race riot and severalhundred were injured, was this situation within the contemplationof the General Assembly when they considered this act? Ordinarilya liberal construction of a Compensation Act seems desirable.'The question here is so clearly one of policy that it is doubtfulwhether it should be settled simply by way of the court so con-stiuing the statute as to fit the requirements. If the state werebuying compensation insurance and not insuring itself the de-cision in the principal case would pave the way to higherpremiums. Military risks should be covered but should it be on aworkmen's compensation basis?-JOHN K. CHASE.SSibley v. State, 89 Conn. 682, 96 Atl. 161 (1915); Hines v. Dept ofLabor and Industry, 150 Wash. 230, 272 Pac. 734 (1928).1Supra n. 1.;W. VA. REv. CODE (1931) e. 23, art. 2, § 1.Johnson v. Hosiery Co., 199 N. C. 38, 153 S. E. 591 (1930) ; Sgathone v.Mulholland, 290 Pa. 341, 138 Atl. 855 (1927); Carter v. Woods Bros Const.Co., 120 Kan. 481, 244 Pac. 1 (1926); Smith v. Jones, 102 Conn. 471, 129Atl. 50 (1925).2West Virginia Law Review, Vol. 37, Iss. 4 [1931], Art. 15https://researchrepository.wvu.edu/wvlr/vol37/iss4/15

Workmen\u27s Compensation--Application to National Guardsman

https://researchrepository.wvu.edu/cgi/viewcontent.cgi?article=5330&amp;context=wvlr

Workmen\u27s Compensation--Application to National Guardsman

Abstract

Similar works

Full text

Available Versions

The Research Repository @ WVU (West Virginia University)