Page:North Dakota Reports (vol. 48).pdf/813

 liability to respond in damages at common law or by statute for injury er death of any employee, wherever occurred, with the exception that it does not apply to minors employed in violation of law, in which case both remedies shall be applicable. These sections are followed by § 20, quoted in the special concurring opinion. This § 20 provides that, when death for which compensation is payable under the act shall have been sustained under circumstances creating in some other person than the Compensation Fund a legal liability to pay damages in respect thereto, his dependents may, at their option, either claim compensation under the act or obtain damages from, or proceed at law against, such other person to recover damages. It is clear that under the act the defendant is that other person against whom there exists a legal liability to pay damages; that legal liability is provided under the terms of §§ 6, 9, and 11. The only reason why compensation under the act is not payable, if rot payable in fact, is because the defendant failed to comply with the terms of the act. In law, compensation is payable under the act because it was a duty of the defendant to comply with the terms thereof. It is unnecessary to determine the liability of the Compensation Fund because it is not involved in the instant case. I therefore adhere to the conclusion that the maintenance of an action by the dependent of the employee is not excluded by the act.

Petition for rehearing should be denied.

NAT'L PETROLEUM MUTUAL FIRE INS. CO. and INTERNATIONAL OIL CO., Appellants, v. JOHN BARTON PAYNE, Director General, as Agt. of the “Soo Ry.” and CHARLES PIKE, Respondents.

(187 N. W. 138)

Master and servant — evidence held insufficient to show conductor acted within scope of employment; conductor’s negligence causing fire and oil station manager’s contributory negligence held for jury.

In an action against a carrier and its conductor for negligence resulting in loss by fire, where some evidence was received to the effect that the conductor carried into an oil station a lighted lantern and a