Jacobson v. Strong & Waggoner

• Decision Date: 15 July 1939
• Docket Number: 8175
• Parties: ALFREDA JACOBSON, Claimant-Respondent, v. STRONG & WAGGONER, and South Dakota Employers Protective Association, Insurance Carrier, Appellants.
• Court: South Dakota Supreme Court

66 S.D. 552

287 N.W. 41

ALFREDA JACOBSON, Claimant-Respondent,

v.

STRONG & WAGGONER, and South Dakota Employers Protective Association, Insurance Carrier, Appellants. South Dakota Supreme Court Appeal from Circuit Court, Davison County, SD Hon. R.C. Bakewell, Judge #8175—Reversed Caldwell & Burns, Sioux Falls, SD Attorneys for Appellants. Joe W. Flood, Canistota, SD Attorney for Respondent. Opinion Filed Jul 15, 1939

WARREN, Presiding Judge.

Proceedings under the Workmen’s Compensation Act (Rev. Code 1919, § 9436 et seq.) by Alfreda Jacobson to obtain compensation for the death of her husband, Barney Jacobson, an employee of Strong & Waggoner. Prom the appellant’s statement of controlling facts and the record before us we make the following observations which become pertinent to the application of the law involved. Barney Jacobson, the husband of the respondent, entered into the employment of Strong & Waggoner in December, 1935. He first worked in the Mitchell shops and then on a graveling project in January, 1936. Bad weather set in and he was out of work until in March. He then did some graveling work. On July 12, 1936, a grading project south of Gettysburg was started. On this last project Jacobson was the mechanical foreman in charge of repair and maintenance of equipment. While acting in the capacity of mechanical foreman he came to his death on August 16, 1936, as the result of burns suffered in a fire which destroyed the bunk car in which he was sleeping near the location of the grading project on which he had been employed. The project was a WPA project on which lie could be employed 160 hours per month. At the time of his death he was earning $25.00 per week with a deduction of 80c per day for board. At the close of the evidence before the Industrial Commissioner an award was made to the claimant, Alfreda Jacobson, the widow, in the sum of $3,000.00, which sum was to be paid at the rate of $12.50 per week. The petition for review was denied and an appeal taken to the circuit court. The circuit court entered its order that the award of the Industrial Commission be in all things affirmed. An appeal from the circuit court was perfected to this court.

Our statement of the facts above is brief, but with the assistance of the findings and conclusion, as made by the Industrial Commissioner, which we quote, and with such reference as we will hereafter make in the body of the opinion, should be ample for a clear understanding of the fact situation. We quote the portion challenged by appellants’ assignments:

“Findings

8. That it was necessary for the said Jacobson in order to properly fulfill his duties to be on the premises of the defendant, Strong & Waggoner, at all times in order to be available if his services were needed.

11. That no charge was made by defendant, Strong & Waggoner, to said Jacobson for sleeping in said sleeping cars but that said Jacobson slept therein with the consent of said defendant; that no express contract was made between Jacobson and Strong & Waggoner relative to his sleeping on the premises, but that Jacobson was expected to sleep on said premises and that he slept on said premises in accordance with such expectation.

12. That said Jacobson slept on the premises of said employers, Strong & Waggoner, in order to be available if his services were necessary for the repair of machinery.

13. That the employers, Strong & Waggoner, were benefited by Jacobson sleeping on the premises as aforesaid.

14. That on the night of August 15th and the morning of August 16th, 1936, the said Jacobson was sleeping in one of said sleeping car on the premises of the defendant, Strong & Waggoner, in accordance with the arrangements above referred to and in pursuance to the expectations of his employers. Strong & Waggoner.”

Conclusions

2. That on and prior to August 16, 1936, Bernard Jacobson, also known as Barney Jacobson, was employed by the defendant, Strong & Waggoner, as master mechanic at an average weekly wage of $25.00 per week.”

5. That the said Bernard Jacobson, also known as Barney Jacobson, received the injuries from which he died in an accident arising out of and in the course of his employment, and that the sleeping of the said Bernard Jacobson, also known as Barney Jacobson, in the sleeping car of the defendant, Strong & Waggoner, was incidental to his employment.”

7. That the death of the said Bernard Jacobson, also known as Barney Jacobson, from the injuries and burns received as aforesaid, is a compensable injury within the meaning of Article 4, Chapter 5, Part 19, Title 6 of the 1919 Revised Code and acts amendatory thereto, known as the Workmen’s Compensation Act.”

Appellants, by all of their assignments of error excepting Nos. 6 and 7, present the question whether or not the accident causing the death of the deceased arose out of and in the course of his employment. From an examination of the evidence we feel that such evidence fully warranted the Industrial Commissioner in making his findings and conclusions of law awarding the recovery. That he was amply sustained by the evidence if he believed the testimony of Elmer J. Waggoner, one of the partners of the company who employed Jacobson, is quite clear. His testimony is in part as follows:

“Jacobson stayed at the camp while he was working and unless his work took him elsewhere. Sometimes he would have to come into town to get some part of machinery repaired but usually he was right on the job all the time. He slept there in one of the bunk cars. He did not keep regular hours. Sometimes he would be up practically all night, and then again he would not do any work in the night, but there were no regular hours that he worked. Whenever there was work to be done, why he would do it. If a piece of machinery was broken down during the night or broken down at any time, lie was supposed to fix it and put it in repair. He tried his best to get it ready for the next day. He had no definite hours to work. He worked when the machinery was broken down, regardless of whether day or night, Saturday or Sunday. It was understood that he was to take charge of the repair work, and of course repair work whenever it has to be done, it has to be done regardless of what time of the twenty-four hours it is. It was the understanding that he was to be available for it.”

Appellants contend that there was no duty, requirement or contract provision compelling Jacobson to sleep in the bunk car in which he was burned. As we understand it, the claimant does not insist that there was such a contract of employment especially requiring Jacobson to sleep in the bunk car, but that as an employee he must of necessity get a certain amount of sleep in order to properly perform his tasks; that he was required by the exigencies of his trade or work to be at all times on or about the premises of his employers; that in order to be ready to do his work when required he had to sleep on the premises of his employers. The record fully sustains the claimant’s position. A reasonable construction of the evidence before us indicates strongly that Jacobson was required to be at all times present on the premises of his employer day and night, week days and Sundays. In other words, he was to be available if his services were required. Our court has, in the past, pursued what we believe to be a wholesome rule, in deciding when one is in the course of employment by differentiating between the term “actual employment” and “incidental employment,” as pointed out in Meyer et al. v. Roettele et al., 194, as follows:

“The mere fact that an employee is not actually engaged at his work at the time of injury does not as a matter of law relieve the employer. Under the terms of employment board was furnished. Decedent was where his employer directed him to be, and, although the partaking of food was personal in character, nevertheless it was so incidental to his employment that the accident did arise out of and in the course of employment. Vennen v. New Dells Lbr. Co., 161 Wis. 370, LRA 1916A, 273, Ann. Cas. 1918B, 293; Archibald v. Workmen’s Compensation Commissioner, 77 W. Va. 448, 87 S. F;. 791, LRA 1916D, 1013; Gilliland v. Edgar Zinc Co., 112 Kan. 39, 209 R. 658, 29 ALR 431; Krause v. Swartwood, supra [174 Minn. 147, 57 ALR 611]; Wasmuth-Endicott Co. v. Karst, 77 Ind. App. 279, 133 N.E. 609.”

The Industrial Commissioner’s finding that the deceased “slept on the premises of said employers, Strong & Waggoner.” in order to be available if his services were necessary for the repair of the machinery” is consistent with the evidence because it appears from the facts, that while Jacobson had no repair work to do during the night of the accident, yet he did have some repair work to do on the following day, which was Sunday. The record of the evidence of one of the employers amply sustains this view and we quote excerpts from his testimony:

“Jacobson had some work to do the following day, Sunday. It was some more repair work on machinery. It was customary for him to be on the job, to sleep there. He never figured on doing anything else but sleeping there. It was necessary for him to be there so we could get hold of him when anything occurred. Of course there was nothing in his contract that stated that he had to sleep there. We wanted him available when we wanted to get hold of him.

It was optional wherever he wanted to sleep. Of course we wanted him there but of course we couldn’t necessarily hold him. He could have slept at one of the farm houses there. It was customary, you know, far the help to stay there. It was really optional with him. He could have slept at some of the neighbors. It was also optional with Groves. Naturally Groves would not go to some place else to sleep and pay for lodging when they could get it free there. It was granted to them free if they desired to accept it.

His staying there was quite a convenience to us peo...