Bower v. Nunemaker

• Decision Date: 26 October 1923
• Docket Number: 5144
• Citation: 195 N.W. 506,46 S.D. 607
• Parties: F. C. BOWER, Plaintiff and respondent, v. FRANK NUNEMAKER, Defendant and appellant.
• Court: South Dakota Supreme Court

46 S.D. 607

195 N.W. 506

F. C. BOWER, Plaintiff and respondent,

v.

FRANK NUNEMAKER, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Gregory County, SD Hon. J. G. Bartine, Judge #5144--Affirmed Charles A. Davis, of Burke, SD Attorneys for Appellant. O. E. Ford, Gregory, SD J. R. Cash, Bonesteel, SD Attorneys for Respondent. Opinion filed October 26, 1923

POLLEY, J.

This is an action for the recovery of damages for personal injury, Plaintiff had judgment, and defendant appeals.

Appellant interposed two defenses. First, settlement and payment in full of such damages and release from respondent therefor; and, second, failure on the part of respondent to file his claim for compensation with the Industrial Commissioner within one year after the injury as required by section 9457, R. C. 1919.

Respondent seeks to avoid the effect of the settlement and release, on the ground of the failure of appellant to file a memorandum of such settlement with the Industrial Commissioner within 20 days after such settlement, as required by section 9467, R. C. 1919.

This is not a proceeding under the Workmen's Compensation Law; consequently neither section 9457 nor section 9467, R. C. 1919, apply.

It is conceded that plaintiff had not excepted himself from the operation of the Workmen's Compensation Law, therefore, he is presumed to have accepted its provisions. Section 9437, R. C. 1919. If the defendant had been operating under such act, then by reason of section 9440, R. C. 1919, this action could not be maintained because in that case the remedy under the Compensation Act is exclusive. Section 9440, R. C. 1919. But defendant did not carry workmen's compensation insurance as required by sections 9439 and 9482, R. C. 1919, nor had he relieved himself from the provisions of these sections in the manner provided by section 9488. He, therefore, was not operating under said act. Richardson v. Farmers' Co-operative Union, 187 N.W. 632. Therefore this action at law lay in favor of plaintiff and against defendant, and the defenses enumerated in section 9444, R. C. 1919, were not available to defendant.

In regard to the settlement and release, respondent testified that at the time the settlement was made he was suffering great pain; that he had had no sleep for several days; that he did not read the release, nor was it read to him before he signed it; that he was not told nor did he know its contents nor that it...