Bergstresser v. City of Willow Lake, 7745.

• Decision Date: 06 March 1935
• Docket Number: No. 7745.,7745.
• Parties: BERGSTRESSER v. CITY OF WILLOW LAKE et al.
• Court: South Dakota Supreme Court

63 S.D. 386

259 N.W. 276

BERGSTRESSER

v.CITY OF WILLOW LAKE et al.

No. 7745.

Supreme Court of South Dakota.

March 6, 1935.

Appeal from Circuit Court, Clark County; W. W. Knight, Judge.

Proceedings under the Workmen's Compensation Law by Katherine Bergstresser, claimant, for the death of her husband, opposed by the City of Willow Lake, a municipal corporation, and the Fidelity & Casualty Company of New York, insurer, wherein Clark County, an organized county in South Dakota, and the Western Surety Company, insurer, were joined as parties defendant. From a judgment of the circuit court sustaining an award made by the Industrial Commissioner against the City of Willow Lake and the Fidelity & Casualty Company of New York, they appeal.

Reversed, with directions to dismiss.

J. J. Fitzpatrick, of Aberdeen, for appellants.

W. C. Brower, of Clark, and George C. Berry, of Willow Lake, for claimant and respondent.

Sterling H. Clark, of Clark, State's Atty. for Clark county, and Tom Kirby, of Sioux Falls, for defendants and respondents.

ROBERTS, Judge.

This is an appeal from an award of the Industrial Commissioner in a proceeding brought by Katherine Bergstresser for compensation under the provisions of the Workmen's Compensation Law (Rev. Code 1919, § 9436 et seq., as amended). The Industrial Commissioner found that Wilson H. Bergstresser, husband of claimant, was an employee of the city of Willow Lake, and that his death was caused by an accident arising out of and in the course of his employment. Clark county and its insurer were joined as parties defendant, but finding that within the meaning and contemplation of the Compensation Law decedent was not an employee of Clark county, the Industrial Commissioner made the award for compensation against the city and its insurer. The circuit court sustained the award, and the cause is here on appeal by the city and its insurer from the judgment of the circuit court.

The stipulated and proved facts disclose that Bergstresser was fatally injured on February 21, 1933, while he was performing labor in a gravel pit. On and prior to that date there was in operation in this state a voluntary agency known as the State Relief Committee. Federal funds were allotted by this committee to the several counties of the state to be used in furnishing relief and relief work to needy and distressed persons. Applications for aid were made to boards of county commissioners, and if applicants were found worthy relief was granted in the manner and to the extent authorized by the state committee. Bergstresser, being unemployed and destitute, applied to the commissioners of Clark county for assistance, and, to provide him and his family with means of support, he was given work on a relief project. As a part of the program for unemployment relief in Clark county, streets in the city of Willow Lake were graveled. The work was performed under the supervision of W. F. Carff, who was mayor of defendant city. The work is described in the stipulation of facts as “'created work' not required by the city needs, but to meet the emergency of unemployment.” The hours of work were determined on the basis of the needs of each workman and his family. Decedent at the time of his injury was in the performance of work under the supervision of Carff and while he did not receive, and there was no agreement that he was to receive, wages from the city, he performed the work with the expectation of receiving payment from relief funds. This he received from funds disbursed directly by the State Relief Committee at the rate of 25 cents an hour. Checks received by him and other workmen on this project were indorsed and delivered to Carff to pay for groceries and supplies, if amounts therefor were owing.

[1] Section 9490, Rev. Code 1919, gives the legislative definition of “employer,” as used in the Compensation Law, as follows: “'Employer' shall include the state and any municipal corporation within the state or any political subdivision thereof, and any individual, firm, association or corporation, or the receiver or trustee of the same, or the legal representatives of a deceased employer, using the services of another for pay. If the employer is insured it shall include his insurer so far as applicable.”

The paragraph defining employee in section 9490, Rev. Code 1919, was amended by chapter 253, Laws 1929, to read: “'Employee' shall include every person, including a minor, in the service of another under any contract of employment, expressed or implied, except...