Detling v. Tessier

• Citation: 244 N.W. 538,60 S.D. 405
• Decision Date: 10 October 1932
• Docket Number: 7262.
• Parties: DETLING v. TESSIER et al. [a1]
• Court: South Dakota Supreme Court

244 N.W. 538

60 S.D. 405

DETLING v. TESSIER et al. ^[a1]

No. 7262.

Supreme Court of South Dakota

October 10, 1932

Appeal from Circuit Court, Brown County; Van Buren Perry, Judge.

Proceedings under the Workmen's Compensation Act by Philip Detling employee, opposed by A. M. Tessier and another, employers and by the Builders' Mutual Protective Association insurer. From a judgment reversing the industrial commissioner's award denying further compensation, and from an order denying a new trial, the employers and insurer appeal.

Reversed.

See also, 240 N.W. 598.

Van Slyke & Agor, of Aberdeen, for appellants.

Max Stokes, of Aberdeen, for respondent.

WARREN J.

This is an appeal in an action for compensation under the workmen's compensation laws of the state of South Dakota.

Claimant sustained an injury on January 12, 1927, during the course of his employment with the defendants. On May 17, 1927, the claimant filed a notice claiming compensation for permanent injury to his back for both temporary total disability and permanent injury. A hearing was had before Industrial Commissioner Travis, who filed his award and findings of fact on the said claim, which findings read as follow: "The testimony at the hearings show an accidental injury to the claimant which arose out of and in the course of his employment, resulting in an injury which caused total permanent disability up to the date of the hearing, June 9, 1927, and further causing partial disability to his back, which is indefinite as to continuance of the condition so existing. The finding is that Philip Detling was entitled to compensation at the rate of $7.92 per week from the date of the injury Jan. 12, 1927, up to the date of the hearing, June 9, 1927, for partial permanent disability, and that such condition had ended at such time. That on account of the injury, there is a partial permanent disability continuing, but that it is of such nature that no definite percentage can be fixed at this time and payments are to continue at the rate of $7.92 per week until further order of the Industrial Commissioner upon review hearing which may be demanded by either claimant or insurer."

The conclusions of law were that the claimant was entitled to compensation under the provisions of subdivision r of paragraph 5, § 9459, South Dakota Revised Code (chapter 310, Session Laws 1923). This order containing the above statements was affirmed on a review hearing held before Industrial Commissioner Travis, and the order so affirming was dated August 24, 1927, in which it is recited, among other things: "That the award made at the time of the hearing, June 9, 1927, is hereby affirmed and approved in all particulars, subject to the requirements and limitations of the South Dakota Workmen's Compensation act as to further payments."

From this decision of Commissioner Travis on review, the cause was appealed to the circuit court, where Judge Gardner affirmed the decisions of Commissioner Travis. No appeal was taken from the decision of Judge Gardner.

The next step in this litigation was a hearing before Industrial Commissioner F. L. Perry, on the 22d of June, 1929. Findings on this hearing were made under date of October 2, 1929, and such findings recite in part:

"The hearing was for the purpose of establishing the amount of partial permanent disability subsequent to June 7, 1927; the amount of temporary total disability having been established in the hearing before the industrial commissioner on June 9, 1927, and upon appeal affirmed by the Circuit Court of Brown County, South Dakota. * * *

"That the plaintiff was immediately taken to St. Luke's hospital; that plaintiff was given medical attention by Dr. H. I. King. That Dr. King instructed and advised plaintiff as to care and exercising of his body. That the plaintiff left St. Luke's hospital on the fifth day after his injury without advice of the attending physician.

"That the plaintiff neglected and disobeyed the instructions and advice of his attending physician. That the plaintiff attended many dances and danced. That the plaintiff repeatedly used intoxicating liquors and was found drunk.

"That the plaintiff was employed at times in doing heavy manual labor. That the defendants have paid plaintiff's compensation in the total amount of $473.08; $169.20 of which was paid for a period of temporary total disability from January 12, 1927 to June 7, 1927, and affirmed by the Circuit Court of Brown County, and the balance of such payments, $308.88, was paid as partial permanent disability for the period of June 8, 1927 to March 13, 1928.

"That defendants have paid for medical services the sum of $110.58. That defendants have paid for hospital service the sum of $75.75. That defendant was supplied medical and hospital service for a period in excess of 12 weeks."

Among the conclusions of law, Commissioner Perry set forth: "That claimant is not entitled to compensation in excess of the amount ordered paid by the industrial commissioner in his decision of July 7, 1927. Further, it is ordered, adjudged and decreed that claimant, Philip Detling, is entitled to the sum of $7.92 per week computed from June 8, 1927 to June 21, 1929, inclusive, except legal holidays and Sundays, until the sum of $822.32 has been paid, $303.58 of which amount has been paid, leaving a balance of $518.48, which latter amount the commissioner settled as an equivalent lump sum at the sum of $501.79 payable forthwith."

On October 9, 1929, claimant filed a petition for review in which he asked permission to show that his physical condition and general health had failed since the hearing of June 22, 1929. A rehearing was had pursuant to that request, at which additional testimony was received at great length. At the close of this rehearing, the commissioner made and filed his order dated June 30, 1930, and readopted the former order.

Claimant then gave notice of appeal on July 16, 1930, to the circuit court, appealing from said orders of the industrial commissioner of October 9, 1929, and June 30, 1930. The circuit court, sitting without a jury, rendered a judgment reversing the industrial commissioner's and entered its own findings and conclusions, awarding a substantial increase amounting to the total sum of $3,000, less payments which had been made up to the time of the trial by the defendants.

From the decision of the circuit court, the defendants...