Bailey v. Hess, 6647

• Decision Date: 15 October 1929
• Docket Number: 6647
• Citation: 55 S.D. 602,227 N.W. 69
• Parties: ELLA BAILEY, Appellant, v. S. B. HESS, et al., dba Hess & Rau, Respondents.
• Court: South Dakota Supreme Court

55 S.D. 602

227 N.W. 69

ELLA BAILEY, Appellant,

v.

S. B. HESS, et al., dba Hess & Rau, Respondents. South Dakota Supreme Court Appeal from Circuit Court, Codington County, SD Hon. W. N. Skinner, Judge #6647—Reversed McFarland & Kremer, Watertown, SD Attorneys for Appellant. Case & Case, Watertown, SD Attorneys for Respondents. Opinion Filed Oct 15, 1929

MISER, C.

The husband of appellant was employed by respondents. On August 13, 1925, he fell down an elevator shaft and was killed. Thereafter, on August 14, 1925, respondents made the report to the Industrial Commissioner required by section 9478, Rev. Code 1919, showing that the employer was operating under the Workmen’s Compensation Act (Rev. Code 1919, § 9436 et seq.) with liability insured in the Integrity Mutual Casualty Company. This report was filed with the Industrial Commissioner on August 19, 1925. On September 1, 1925, Mrs. Bailey gave written notice to respondents of her husband’s death while in respondents’ employment. This claim for compensation, if such it was intended to be, was not filed with the Industrial Commissioner as required by section 9457, Rev. Code 1919. Thereafter, appellant and respondents agreed that $2.50 per day for a total of $3,000 should be paid to appellant under the South Dakota Compensation Law, and a memorandum of that agreement showing that said employers had insured their liability thereunder with the Integrity Mutual Casualty Company was filed on August 29, 1927, and approved by the Industrial Commissioner on August 29, 1927, in accordance with section 9467, Rev. Code 1919. This memorandum of agreement does not show when it was signed or the settlement made; but, on November 9, 1925, appellant received from the Integrity Mutual Casualty Company the sum of $180 and executed a receipt for that amount for compensation under the South Dakota Workmen’s Compensation Law; and thereafter, from November 9, 1925, to May 8, 1926, appellant received from the casualty company weekly payments in accordance with the memorandum of agreement, and executed receipts therefor which were filed with the Industrial Commissioner. In May, 1926, the casualty company became insolvent and made no further payments under the agreement, leaving a balance unpaid of $2,430. On September 20, 1927, appellant instituted proceedings in the circuit court under section 9475, Rev. Code 1919, presenting to the circuit court a certified copy of the memorandum of agreement as approved by the commissioner and all papers in connection therewith, and asking the court to render decree in accordance therewith.

Respondents objected that the circuit court was without jurisdiction to enter such decree, claiming that appellant’s right to compensation was barred under section 9457, because no claim for compensation had been filed with the Industrial Commissioner. On this objection, the petition of appellant for a judgment against respondents was denied and the proceeding dismissed; and from this order and decree this appeal has been taken.

Section 9467 is as follows:

“If the employer and employee reach an agreement in regard to the compensation under this law, a memorandum thereof shall be filed with the industrial commissioner by the employer or employee, and unless the commissioner shall, within twenty days, notify the employer and employee of his disapproval of the agreement, by registered letter sent to their addresses as given on the memorandum filed, the agreement shall stand as approved and be enforceable for all purposes under the provisions of this article.”

Section 9475 is in part as follows:

“Any party in interest may present a certified copy of an order or decision of the commissioner or a decision of a board of arbitration from which no claim for review has been filed within the time allowed therefor, or a memorandum of agreement approved by the commissioner, and all papers in connection therewith, to the circuit court of the county in which the injury occurred, whereupon the court shall render a decree in accordance therewith and notify the parties.”

Section 9457 is as follows:

“The right to compensation under this article shall be forever barred unless, within one year after the injury or, if death results therefrom, within one year after such death, a claim for compensation thereunder shall be filed with the Industrial Commissioner.”

Respondents contend that the provisions of section 9457 are mandatory and require that the claim be filed in order to give the Industrial Commissioner jurisdiction to enter an award. In support of their contention respondents cite many cases well supported by authority. Particularly well supported is Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084; but in none of the...