Cassels v. H. W. Cassels Co.

• Decision Date: 21 May 1932
• Docket Number: 7257
• Citation: Cassels v. H. W. Cassels Co., 59 S.D. 643, 242 N.W. 587 (S.D. 1932)
• Parties: LEON H. CASSELS, Employee-Respondent, v. H. W. CASSELS & CO., Employer, and United States Fidelity & Guaranty Company, Insurer-Appellants.
• Court: South Dakota Supreme Court

59 S.D. 643

242 N.W. 587

LEON H. CASSELS, Employee-Respondent,

v.

H. W. CASSELS & CO., Employer, and United States Fidelity & Guaranty Company, Insurer-Appellants. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. Van Buren Perry, Judge #7257—Reversed Williamson, Smith & Williamson, Aberdeen, SD Attorneys for Appellants Fletcher & Fletcher, Aberdeen, SD Attorney for Respondent. Opinion filed May 21, 1932

WARREN, J.

Claimant, Leon H. Cassels, was injured at 5 o’clock in the afternoon, on Saturday, November 24, 1928, while trying to dislodge some corn fodder in a shredder. Notice was given and a claim filed with the industrial commissioner.

Proceedings were instituted, and by consent of the parties a trial was had before the industrial commissioner, who at the conclusion thereof found for the defendants and entered findings of fact and conclusions in which he found that, at the time of the injury to Leon H. Cassels, he was in the employment of H. W. Cassels of Groton, S.D., as a farm laborer, and had been so employed at various times for several years prior thereto, and that he was engaged in shredding corn at the time the accident happened. He also found that, prior to the date of the accident, H. W. Cassels had been conducting his farming operations under the provisions of the Workmen’s Compensation Laws, and that the policy had lapsed on the 16th day of November, 1928. A conclusion of law was made to the effect that the injury suffered by claimant, Leon H. Cassels, arose out of his employment by H. W. Cassels, an individual, as a farm laborer, and at the time of the injury he was not operating under the Workmen’s Compensation Laws of the state of South Dakota. A denial of award was thereafter entered by the industrial commissioner and an appeal taken to the circuit court. It was tried in the circuit court, based upon the record as certified from the industrial commissioner. The circuit court made complete findings of fact, conclusions of law, and a judgment reversing the industrial commissioner’s findings and denial of award, allowing damages to the claimant for his hospital expense, medical services, and $15 a week for a period of two hundred weeks. Thereafter the record of the proceedings was prepared and settled, a motion for new trial made, which was denied, and an appeal perfected to this court.

Leon, the claimant, is the son of one H. W. Cassels. The plaintiff’s father and mother are majority stock owners in a machinery implement corporation operating under the name of H. W. Cassels & Co. They own three-fourths of the stock. A Mr. Hoy owns the other fourth interest. Their general farm implement business is located at Groton, S.D. It carried employers’ liability insurance with the defendant United States Fidelity & Guaranty Company. The injury to Leon took place on his father’s farm near Groton, S.D.

It would appear from the evidence that plaintiff had been engaged for a period of some eight or ten days on said farm shredding corn. The claimant, however, contends that he was not en gaged in shredding corn, ‘’but was engaged in repairing an old worn-out and dilapidated corn shredder, that the repairs were brought out from the implement company, and that he was working for the corporation and not in the interest of his father upon said farm as a farm laborer. There were four men in the crew operating the shredder. The last load of corn that they intended to shred was being run through when the shredder became clogged with cornstalks. Leon’s left arm was caught in, the rollers and injured so that amputation at the elbow was necessary.

It is appellants’ contention that Leon was engaged in operating a shredder upon his father’s farm, and, that he had been engaged in these shredding operations from eight to ten days. Two hired men hauled bundles. Jim Jay and the claimant operated the machine, including the running of the engine, supervising the shredder, and feeding the shredder. Leon stated that he never at any time fed the shredder, and that he did not operate the engine, and that his sole and only activity during the time of the shredding was to handle a wrench and repair the machine. A witness testified that Leon was there all of the time that the work was being done, and that he was working around the shredder doing what he could. This is denied by the claimant, but he admits that the shredder was never operated when he was absent, and that they were just finishing up the last load of corn at the time the injury took place.

There is some evidence to the effect that the corporation intended to sell the shredder, and that they were repairing it, and that certain prospects had looked at it with the view of buying it. There is testimony in the record that the claimant and Jim Jay spent some eight or ten days repairing the shredder. There is also the further facts that the corporation furnished the repairs. That the motives in giving such testimony, might be questioned by the trier of the facts and bear upon the probability or improbability of the claimant’s presence for the purpose of repairing the shredder or for the purpose of participating in the shredding of the corn on his father’s farm seems quite likely.

The corporation books were introduced, it seems, as evidence for the purpose of showing the employment of the claimant by the corporation. The record of said book entries presented sheds but very little light to us, but may have been of considerable assistance to the trier of the facts in connection with the oral...