Appeal
from Circuit Court, Hughes County; Frank R. Fisher, Judge.
CAMPBELL
J.
Pirl
Edge in October, 1926, was an employee of the city of Pierre
(one of the defendants herein), and the Workmen's
Compensation Law of this state (Rev. Code 1919, § 9436 et
seq., as amended) was applicable to such employment. The city
of Pierre had insured its liability to its employees under
that law with Zurich General Accident & Liability Insurance
Company (the other defendant herein). On October 16, 1926
Edge suffered an accidental injury, arising out of and in the
course of his employment, by the dropping of a piece of heavy
cast iron water pipe upon his leg. As a result of this
accident his leg was broken and he was confined for some time
in a hospital, whence he was discharged as a normal recovery
according to the hospital records in March, 1927. He was paid
compensation for such accidental injury by defendant
insurance company in the amount of $281.60, covering a period
of twenty-one weeks and two days after the date of the
injury, in addition to the sum of $121.85 for medical
surgical, and hospital service, and accepted and receipted
for such amounts as full compensation for such accidental
injury, and a memorandum
of settlement thereof was filed and approved by the
industrial commissioner on May 9, 1927. In addition to such
statutory compensation, the defendant city voluntarily and
gratuitously paid to Edge between November 12, 1926, and
February 21, 1927, the further sum of $150. Edge returned to
work for the city on May 3, 1927. He continued in employment
for about ten days, when he stopped work complaining of not
feeling well, although he drew wages until May 24, 1927. June
8, 1927, Edge died. It is conceded by all parties to this
record that the immediate cause of his death was disease, and
that the particular disease was either encephalitis or
cerebrospinal meningitis. It is undisputed upon the record
that both of such diseases are caused by a specific bacillus,
and that the usual period of incubation is from one to seven
days, but may be as long as three weeks.
Thereafter,
the present claimant herein, Charlotte Edge, widow of said
employee, made claim for compensation upon the theory that
the death of her husband was a result of the accidental
injury suffered in October, 1926. The matter came on for
hearing before the industrial commissioner on November 15,
1927, a board of arbitration being waived, and, after such
hearing, the industrial commissioner made findings and
rendered his decision against the allowance of compensation
as follows:
"The testimony shows that Pirl Edge, deceased husband of
the claimant, had an accident on October 16, 1926, resulting
in an injury, which arose out of and in the course of his
employment, whereby the right leg was broken below the knee.
The records show that said Pirl Edge has received for
compensation in the sum of two hundred eighty-one dollars and
sixty cents ($281.60) which is compensation based on
fifty-five per cent of said Pirl Edge's average weekly
earnings for a period of twenty-one and one-third weeks,
covering total incapacity account of said injury.
"It further appears from the testimony that said Pirl
Edge had some internal disorder that is unascertained.
"It further appears that said Pirl Edge died from either
encephalitis or cerebro-spinal-meningitis, and that these
diseases are both germ diseases, and that said germs, in both
instances, have been isolated, and the incubation period is
ordinarily short, and that there was no ascertained
connection between the original injury of October 16, 1926,
and the death of said Pirl Edge on June 8, 1927.
"Decision.
"The claim for compensation is denied, there being no
definite showing that the injury of October 16, 1926, was the
proximate cause of the death of Pirl Edge on June 8,
1927."
From
this adverse decision of the industrial commissioner the
claimant, Charlotte Edge, appealed to the circuit court of
Hughes county, S. D., as a result of which appeal the cause
was remanded to the industrial commissioner for further
hearing and proceedings. Thereafter additional testimony was
heard and considered by the industrial commissioner (a board
of arbitration being again waived), and the industrial
commissioner made new and additional findings of fact and
conclusions, and again rendered a decision adverse to the
claimant, the additional findings and conclusions being as
follows:
"Findings of Fact.
"I. That on the 16th day of October, 1926, Pirl Edge
the deceased, was the husband of Charlotte Edge, claimant in
these proceedings, and was in the employ of the City of
Pierre, a municipal corporation of the state of South Dakota,
and had been so employed for the space of approximately four
months prior thereto.
"II. That at said time and place the said Pirl Edge was
employed by said City of Pierre as a laborer with the Water
Department operated by said City of Pierre, under the
direction of said City of Pierre's agent and engaged in
the unloading of water mains for said department.
"III. That it was a part of said Pirl Edge's duties
and employment to assist the other employees of the said City
of Pierre in unloading water mains and incidentally to assist
in any other work he was directed to by said City of Pierre
or its agents to perform.
"IV. That on the 16th day of October, 1926, while thus
employed by the City of Pierre, he was accidentally injured
by a piece of cast iron water main ten inches in diameter and
approximately eight feet long, weighing between 400 and 600
pounds, accidentally falling upon his right leg, breaking the
tibia and fibula in the middle third, and said injury
incapacitated him from work for a period from October 16,
1926, to March 15, 1927.
"V. That said Pirl Edge was employed by said City of
Pierre at the time of said injury at the rate of twenty-four
($24.00) dollars per week.
"VI. That notice of said injury was given to the
industrial commissioner on the 3rd day of November, 1926, by
the Zurich Accident & Liability Insurance Company, which
notice had been made out by said insurance company's
agent, G. L. Erickson, at Pierre, Hughes county, South
Dakota, on October 20, 1926.
"VII. That neither claimant or defendants filed with the
industrial commissioner any appointment of a member of the
board of arbitration prior to the hearing on said matter.
"VIII. That the City of Pierre had insured the payment
of compensation to its
employes as required by statute with the Zurich Accident & Liability Insurance Company and same was in full force at the
time of said accident.
"IX. That compensation was paid to the deceased, Pirl
Edge, in the amount of two hundred eighty-one and 60/100
dollars ($281.60), and in addition thereto, medical, surgical
and hospital services in the amount of one hundred twenty-one
and 85/100 ($121.85) dollars, and accepted by him in full
compensation for said injury.
"X. That at a period several months prior to his death,
claimant made a complete normal recovery following the
accident of October 16, 1926.
"XI. That a memorandum of settlement was drawn and
signed by the employer and the employee for the sum of two
hundred eighty-one and 60/100 ($281.60) dollars for said
employee's incapacity to earn wages and in addition
thereto one hundred twenty-one and 85/100 ($121.85) dollars
for medical, surgical and hospital services, was paid by the
defendants, and that said memorandum of settlement was filed
and approved by the industrial commissioner May 9, 1927.
"XII. That the deceased, Pirl Edge, died on June 8,
1927, of either encephalitis or cerebro-spinal-meningitis.
"XIII. That said encephalitis or
cerebro-spinal-meningitis was not accelerated or aggravated
by the accidental injury of October 16, 1926.
"XIV. That said injury of October 16, 1926, did not
cause the said Pirl Edge to become weakened physically and
mentally, and did not cause said Pirl Edge to be more
susceptible to germ disease.
"XV. That the death of said Pirl Edge was not caused by
the said injury of October 16, 1926, and said injury did not
contribute to or hasten the death of said Pirl Edge.
"Conclusions.
"Therefore, the industrial commissioner of the state of
South Dakota concludes:
"I. That on the 16th day of October, 1926, the deceased
employe, Pirl Edge, was an employe of the City of Pierre, a
municipal corporation of the state of South Dakota, and while
so employed was injured by an accident arising out of and in
the course of his regular employment and by such injury
temporarily incapacitated from earning full wages for a
period of twenty-one and one-third weeks.
"II. That the defendant employer had knowledge of said
injury at the time same occurred.
"III. That claimant and defendants waived a hearing
before a board of arbitration and submitted this matter to
the industrial commissioner of the state of South Dakota.
"IV. That the said Pirl Edge was paid in full for all
compensation due him from defendants under the Workmen's
Compensation Law of the state of South Dakota
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