Driessen v. Schiefelbein
| Decision Date | 29 April 1941 |
| Docket Number | 8420. |
| Parties | DRIESSEN v. SCHIEFELBEIN et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Grant County; Howard Babcock, Judge.
Proceeding under the Workmen's Compensation Act by Albert L Driessen, claimant, opposed by Harvey J. Schiefelbein employer, and the South Dakota Employers Protective Association, insurer. From a judgment reversing decision of the Industrial Commissioner denying an award of compensation the defendants appeal.
Reversed.
Caldwell & Burns, of Sioux Falls, for appellants.
A. O. Schmidt, of Milbank, for respondent.
Plaintiff brought this proceeding to recover compensation under the Workmen's Compensation Law, SDC, Title 64, 64.0101 et seq. The Industrial Commissioner denied an award, which was reversed upon appeal of the claimant to the circuit court. Defendants have now appealed.
The facts in the case are undisputed. In the fall of 1938 several farmers in the immediate vicinity of Milbank organized a " ring" to conduct threshing operations. The claimant, Driessen, was a member of this ring as was also the defendant, Schiefelbein. Schiefelbein owned and operated the threshing rig which was to be used to thresh the grain. Schiefelbein had a policy of Workmen's Compensation Insurance which covered not only his threshing operations, but also farm labor. Each member of the ring exchanged his labor for the labor of other members of the ring, but, if the labor of one member for another was in excess of that of the other member, as between these two settlement was made on the basis of thirty-two cents an hour or three dollars and fifty cents for eleven hours work. It was agreed among the members of the ring that work should commence at 7 o'clock in the morning and end at 7 o'clock in the evening. Each member of the ring was to furnish either the labor of himself or a man and a team of horses. The work performed by the ring members was that of hauling bundles from the field to the threshing machine, and also hauling grain from the threshing machine to the elevator or granary as directed. Mr. Schiefelbein, the owner and operator of the threshing machine, employed a man by the month who helped with the threshing machine and threshing operations. For threshing the grain of the different farmers Schiefelbein was paid a stated amount per bushel threshed, which payment included the services of himself and the man he employed on a monthly basis. As a member of the ring, Schiefelbein also furnished a man and team. While conducting threshing operations on this basis and while threshing at the farm of Schiefelbein, the claimant left the machine with a load of grain to take to the elevator at Milbank. This Schiefelbein place was adjacent to the city of Milbank and the distance to the elevator was somewhat less than a mile. Driessen lived approximately two miles southeast of Milbank. Driessen left with this load of grain, above referred to, at approximately 6 o'clock in the evening and was told by Schiefelbein that after he unloaded the grain at Milbank to go on home. Driessen unloaded this load of grain at Milbank and proceeded to drive to his home. Just as he approached the driveway into his home, his team of horses became frightened and ran into his yard where Driessen was thrown from the wagon and injured. The accident occurred between 7:30 and 8 o'clock in the evening. The Industrial Commissioner concluded as a matter of law " that the injury sustained by claimant Driessen was not the result of an accident arising out of and in the course of his employment for the defendant Schiefelbein." For the purposes of this opinion we may concede that, while helping with threshing at Schiefelbein's place under the working arrangement above disclosed, Driessen was an employee of Schiefelbein within the meaning of the Workmen's Compensation Law.
Our statute, SDC 64.0102(4), provides that the only injury that is compensable is an " injury by accident arising out of and in the course of the employment." This court on several occasions has been required to apply this statute to a state of facts where the injury has occurred at a time other than during the regular time of employment. On each occasion the court has been rather astute in discerning facts which brought the injury within the meaning of this Code provision. In the case of Stratton v. Interstate Fruit Company, 47 S.D. 452, 199 N.W. 117, the injury occurred while a truck driver was returning to his work from dinner but the facts in that case established that this driver was actually performing a duty owed the employer, in that, at the time of the accident, he had on his...
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