DISSENTING OPINION I find myself unable to agree with the conclusion reached in the majority opinion. The sole question presented in this appeal is whether or not the appellee's husband, Thomas Hazelett, who was a member of the fire department of the city of Fort Wayne at the time of his death, was an employee of the city within the meaning of the Indiana Workmen's Compensation Act. The statute defining the terms "employer" and "employee" reads as follows:
"In this act unless the context otherwise requires: (a) `Employer' shall include the state and any political division, any municipal corporation within the state, . . . ., using the services of another for pay. (b) The term `employee' *Page 191 as used in this act shall be construed to include every person including a minor, in the service of another, under any contract of hire or apprenticeship, written or implied, except one whose employment is both casual and not in the usual course of the trade, business, occupation or profession of the employer." Sec. 73, Indiana Workmen's Compensation Act of 1929, as amended by ch. 243 of the Acts of 1933, p. 1103.
It is clear from a reading of this statute that the term "employer" is broad enough to include the city of Fort Wayne and nobody can contend but that the city of Fort Wayne was "using the services" of Thomas Hazelett "for pay" at the time he met his death. An "employee" is defined as "to include every person in the service of another, under any contract of hire, written or implied." The majority opinion holds that the language is not broad enough to include a city fireman. It seems clear to me that a city fireman in the discharge of his duties is acting "in the service of" the city. If he is not under a contract of hire, then what is his relationship to the city? The majority opinion does not undertake to answer this question.
However, such a question was recently before our Supreme Court. The case of City of Peru v. State, ex rel McGuire (1936),210 Ind. 668, 199 N.E. 151, was a case involving the right of the respondent to be restored to the position as fireman in the fire department in the city of Peru. His right to maintain the action in that case depended upon whether or not he was an officer of the city or an employee and the Supreme Court in that case said, "The decisions of this court hold that the relator was merely an employee of the city and not an officer." Proceeding further in the opinion, our Supreme Court stated (p. 673): *Page 192
"Since the relator is declared by judicial determination in this state to be an employee merely, it is clear that he cannot maintain an action to mandate the municipality to pay to him the salary of the position during the time he was ousted, and when the salary was being paid to another. Mandate does not lie in such case.
"As above stated, his remedy was an action against the city for breach of contract of employment."
It will be noted from the above language that our Supreme Court has said that a city fireman who is wrongfully discharged may maintain an action against the city for "breach of contract of employment", yet in the face of this language, the majority opinion states "that the deceased fireman was not in the service of the appellant under any contract of hire or apprenticeship, express or implied". These two statements cannot be reconciled. The Supreme Court of our state having fixed by judicial determination the status of a city fireman as that of an employee of the city under contract of employment, it is my opinion that the Appellate Court is bound by such determination and I can find no justification for the statement that such an individual is not under a contract of hire within the meaning of the Indiana Workmen's Compensation Act.
The deceased fireman was not an officer of the city of Fort Wayne. Yet he was rendering a service to the city for pay. What element is lacking which prevents him from being considered an employee? The mere fact that his salary was fixed by statute and that he could not be discharged from his position without cause and only after notice and hearing if demanded is not sufficient to remove such fireman from the status of an employee. Neither is the fact that a pension *Page 193 program has been provided for city firemen by statutory enactment sufficient to change their status as employees.
A similar situation prevails as regards public school teachers in Indiana who have acquired tenure rights. The statute provides that such school teachers cannot be removed from their position except for cause and upon hearing. A pension program for them has been provided by statutory enactment, yet our Supreme Court has held that they are employees of the corporation for whom they work and not officers. Kostanzer v. State, ex rel. Ramsey (1933), 205 Ind. 536, 187 N.E. 337.
Our court has recently held that school teachers as employees of a municipal corporation are within the provision of the Workmen's Compensation Act. Williams v. School City ofWinchester (1937), 104 Ind. App. 83, 10 N.E.2d 314.
Our court is also committed to the proposition that in construing the legislative definition of "employee", a measure of liberality should be indulged to the end that doubtful cases may be resolved in favor of the beneficiaries of the compensation plan. McDowell v. Duer (1922), 78 Ind. App. 440, 133 N.E. 839.
In view of these authorities, it is my opinion that the award of the Industrial Board should have been affirmed.