Page:North Dakota Reports (vol. 48).pdf/812

 caused by the negligence of the defendant.

Robinson, J. (dissenting). In this case there is no occasion for passing the “buck” to the jury. The facts are not in dispute. Defendant kept a loaded revolver in a desk where he had a perfect right to keep it. One of two employees wrongfully took the revolver, and by accident shot the other, a son of the plaintiff. It was purely an accident.

On Petition for Rehearing.

Bronson, J. The defendant has filed an able petition for rehearing. Among other things he earnestly contends that the writer, in his specially concurring opinion, has misconstrued the meaning and application of § 20, quoted in such opinion. He contends that § 20 confers a right of action upon dependents only in case of an injury or death for which compensation is payable under the act, not in cases where compensation is provided in the act; that compensation is payable under the act only in cases where the employer has contributed his assessment to the Compensation Fund; that, under § 10 of the act, it can only be disbursed to such employees of employers as have paid into the fund the premiums applicable; that this section, therefore, refers to that class of cases where the employer has paid, his assessment, and, by reason thereof, compensation has become payable to the employee or his dependents, and, where an injury having occurred through the wilful act or negligence of some other person, a right of action for damages is given against such other person. The contentions are not without merit, and require, by their able presentation, consideration. However, technical reasoning should not override the intent and purview of the act to allow a remedy for a wrongful act. If the defendant had complied with the terms of the Compensation Act, manifestly compensation would have been payable under the act to the dependents of the deceased boy. Section 6 of the act requires every employer to contribute to the fund. It relieves such employer, so contributing, from all liability for personal injuries or death sustained by his employees, and the persons entitled to compensation under the act shall have recourse therefor only to the North Dakota Compensation Fund, and not to the employer. Section 9 of the act likewise relieves employers who comply with the provisions of said § 6 from