Donovan v. Powers

• Decision Date: 27 January 1972
• Docket Number: No. 10995,10995
• Citation: 193 N.W.2d 796,86 S.D. 245
• Parties: Michael E. DONOVAN, Plaintiff and Appellant, v. Robert W. POWERS, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 796

193 N.W.2d 796

86 S.D. 245

Michael E. DONOVAN, Plaintiff and Appellant, v. Robert W. POWERS, Defendant and Respondent.

No. 10995.

Supreme Court of South Dakota.

Argued Dec. 7, 1971.

Decided Jan. 27, 1972.

Willy, Pruitt 3 Matthews, Gene E. Pruitt, Sioux Falls, for plaintiff and appellant.

Braithwaite, Cadwell & Braithwaite, Sioux Falls, for defendant and respondent.

BIEGELMEIER, Judge.

Defendant, a painting contractor, employed plaintiff as a painter; the hours of employment were from 8 a.m. to 4:30 p.m. at $3.50 per hour with payment for the preceding week being made each Friday at 4:30 p.m. On the Friday in question, plaintiff and defendant had completed one of the rooms of the house on which they were working when there was some discussion about going hunting. Following this conversation plaintiff carried out some equipment to defendant's truck which was parked in the driveway of the residence on which they were working. Defendant computed plaintiff's pay for the prior week up to 4:30 p.m. that day, wrote out a check and gave it to him. Defendant entered his pickup truck, which he regularly used in his business, and at 3:30 p.m. while backing it struck plaintiff who was walking toward his pickup parked nearby and caused injuries to plaintiff. It appears defendant had complied with our Workmen's Compensation Law (SDCL 62) in securing payment of compensation by insurance therefor. SDCL 62--5--2. Certain medical expenses and weekly compensation were paid by defendant's workmen's compensation carrier.

Thereafter plaintiff brought this action for damages. It was tried to the court which entered findings of fact, conclusions of law and a judgment for defendant from which plaintiff appeals. In addition to the facts above the court found plaintiff was injured on the premises where the work of plaintiff and defendant was being done during plaintiff's regular hours of employment, that at the time of the accident both plaintiff and defendant were subject to the provisions of the South Dakota Workmen's Compensation Law, and concluded the injury to plaintiff arose out of and in the course of his employment, that his exclusive remedy was under that Law, and there was no common-law liability of defendant to plaintiff on account of the injuries sustained by plaintiff.

Some basic principles will first be stated. The designation of a finding of fact as a conclusion of law (or vice versa) is not determinative of its true nature and a fact expressed as a conclusion of law will be treated on appeal as a finding of fact. State ex rel. Van Loh v. Prosser, 78 S.D. 35, 98 N.W.2d 329, and see State ex rel. Barnes v. Behan, 81 S.D. 56, 131 N.W.2d 81; Wilson v. Allstate Insurance Company, S.D., 186 N.W.2d 879. Findings of fact may not be set aside 'unless clearly erroneous.' RCP 52(a), SDCL 15--6--52(a); In re Estate of Hobelsberger, S.D., 181 N.W.2d 455; Mulder v. Tague, S.D., 186 N.W.2d 884. The Workmen's Compensation Law is remedial and should be liberally construed to effectuate its purpose. Schwan v. Premack, 70 S.D. 371, 17 N.W.2d 911; Bergren v. S. E. Gustafson Const. Co., 75 S.D. 497, 68 N.W.2d 477. This construction applies to law not the evidence to support the claim. Podio v. American Colloid Co., 83 S.D. 528, 162 N.W.2d 385.

The general purpose of the Workmen's Compensation Law is to substitute, in place of the doubtful contest for recovery on proof of an employer's negligence and the absence of common-law defenses, a right of relief based on the fact of employment (stated to be practically automatic and certain), which improves the economic status of the worker and obviates the uncertainties, delay, expense and hardship attendant upon the enforcement of common-law remedies. 58 Am.Jur., Workmen's Compensation, § 2. Here the issue is whether the employment so as to be covered by that Law existed at the time the injuries occurred.

We conclude the trial court's rulings that the plaintiff's injuries occurred on the premises where plaintiff and defendant were working during the regular hours of that employment and arose out of and in the course of that employment are not clearly erroneous and may not be set aside by the court.

In Anderson v. Hotel Cataract, 70 S.D. 376, 17 N.W.2d 913, two employees engaged in a dispute, whereupon one employee Anderson said he was going to quit and go home, went to his locker to get his coat and while putting it on was assaulted by another employee. Anderson died as a result of the blows received. The court wrote:

'Discharge by the employer, and quitting by an employee, are but incidents of all employments. A discharged employee is allowed a...