Collins v. Chi., M. & St. P. Ry. Co.
| Decision Date | 16 February 1926 |
| Docket Number | No. 5307.,5307. |
| Citation | 49 S.D. 411,207 N.W. 460 |
| Court | South Dakota Supreme Court |
| Parties | COLLINS v. CHICAGO, M. & ST. P. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Dewey County; W. F. Eddy, Judge.
Proceeding under the Workmen's Compensation Act by James Collins for injuries, opposed by the Chicago, Milwaukee & St. Paul Railway Company, employer. Order of the Industrial Commissioner granting an award was reversed by the circuit court, and claimant appeals. Affirmed.W. M. Potts, of Mobridge, for appellant.
E. L. Grantham and H. O. Hepperle, both of Aberdeen, for respondent.
On the 17th of October, 1917, plaintiff, James Collins, was an employee of the defendant, Chicago, Milwaukee & St. Paul Railroad, as a section employee in Dewey county. On that day he was called by the section foreman with others to stop a prairie fire. In doing so, and while off of the premises of the railroad company, and while riding rapidly over rough ground in a wagon not owned by the company nor being driven by any of its employees, he fell from the wagon, injuring one of his limbs. On the 24th of January, 1918, he commenced an action in the circuit court of Dewey county against the defendant to recover $2,500 damages on account of said injuries. Defendant answered, and a trial was had on the 4th of June, 1918, resulting in a decision in favor of the defendant. Subsequent to the trial of this action, but within one year of the accident, plaintiff filed an application for compensation under the Workmen's Compensation Act with the Industrial Commissioner, and the said Commissioner allowed him under said application the sum of $224.60, with interest at 7 per cent. from April 17, 1918.
From this award of the Commissioner an appeal was taken to the circuit court of Dewey county, where the action of the commissioner was reversed. It is admitted by the defendant that if the Commissioner had jurisdiction claimant is entitled to the full amount. The sole question to be determined is, was plaintiff, after having proceeded in an action at law in the circuit court of Dewey county, precluded from proceeding before the Industrial Commissioner under the Workmen's Compensation Act?
At the time the action in the circuit court was commenced, the Workmen's Compensation Law (chapter 376, S. L. 1917), was in force, having become the law of this state on the 1st day of July, 1917. Section 2, p. 1 (section 9437, R. C. 1919) of said act provides:
“From and after the taking effect of this act, every employer and every employee, except as herein stated, shall be presumed to have accepted the provisions of this act respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of employment, and shall be bound thereby.”
Section 46, p. 4 (section 9482, R. C. 1919), of the act provides:
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