King v. Johnson Bros. Const. Co.

• Decision Date: 21 December 1967
• Docket Number: No. 10431,10431
• Citation: 83 S.D. 69,155 N.W.2d 183
• Parties: Anna KING, Claimant and Respondent, v. JOHNSON BROS. CONSTRUCTION COMPANY, a Co-Partnership, Employer, and State Automobile & Casualty Underwriters, Insurer, Appellants.
• Court: South Dakota Supreme Court

Page 183

155 N.W.2d 183

83 S.D. 69

Anna KING, Claimant and Respondent, v. JOHNSON BROS. CONSTRUCTION COMPANY, a Co-Partnership Employer, and State Automobile & Casualty Underwriters, Insurer, Appellants.

No. 10431.

Supreme Court of South Dakota.

Dec. 21, 1967.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, for employer-insurer and appellants.

Claude A. Hamilton, Blaine Simons, Sioux Falls, for claimant and appellee.

HOMEYER, Presiding Judge.

This is a Workmen's Compensation case. The Industrial Commissioner denied death benefits to claimant, Anna King, the widow of Lester King, and to their six minor children. An appeal was taken to the circuit court where the Commissioner was reversed and judgment entered directing the Commissioner to enter an award of compensation. The employer and insurer appeal.

On November 18, 1963, Lester King was employed by Johnson Bros. as the operator of a gravel truck. Shortly after the noon hour on that day while in the course of his employment his gravel truck went off the highway at a point about six miles north of Menno, South Dakota. The truck was loaded with gravel and was proceeding in a southerly direction down a rather steep hill. It gradually went off the road, down a steep embankment, through a barbed wire fence, across a pasture, across a small creek, and crashed into a bank of earth where it upset and caught fire. King was deal when his badly burned body was discovered in the truck. The truck was in good mechanical condition; the brakes had been repaired in Sioux Falls two or three days before.

No witnesses observed the truck leave the road or during its subsequent journey to destruction. Persons on the scene shortly afterwards took pictures which show the path it made. They also testified to distances. The evidence shows that from the crest of a hill the truck gradually went off the road to the left; that it angled for about 990 feet before reaching the edge of the road; that the tracks continued in a straight line for about 675 feet from the edge of the road to a fence line, and then continued in a straight line about 1050 feet to the north edge of a creek, and then across the creek into a high bluff south of the creek. Witnesses testified there was no evidence of brakes having been applied and no skid marks; that the tracks appeared to have been made from rolling wheels. From the exhibits it appears no attempt was made to steer the truck. The pasture was large enough so that the truck could have been turned to avoid going across the creek and into the bank. The Commissioner viewed the scene at the time of the hearing.

King was 45 years of age and in good health. He was not known to have heart trouble. There was no evidence of unusual strain. He started to work about 6:30 a.m. that day and had hauled five or six loads of gravel on round trips of eight or ten miles each--each trip taking about 45 minutes--before the mishap. He was not required to do any heavy lifting or shoveling. He had lunch at noon on the job and during the noon hour when asked how things were going, he responded: 'Not too bad, just that I don't feel good.'

The Commissioner found that the only reasonable inference to be drawn from the evidence was that King's death resulted from natural causes and there was no causal relationship between his employment and death. He concluded that claimant had failed to sustain the burden of proving that King's death was caused by accident arising out of his employment or resulted from other than natural causes.

The claimant has the burden of proving all facts essential to compensation, and if she fails to meet such burden of proof, the Commissioner has the duty to deny compensation. Edge v. City of Pierre, 59 S.D. 193, 239 N.W. 191; Cooper v. Vinatieri, 73 S.D. 418, 43 N.W.2d 747; Howe v. Farmers Cooperative Creamery of Madison, 81 S.D. 207, 132 N.W.2d 844. The essential facts need not necessarily be proved by direct evidence, but may be established by reasonable inferences from facts known to exist. Schlichting v. Radke, 67 S.D. 212, 291 N.W. 585. A reviewing court does not trespass upon the defined jurisdiction of the Industrial Commissioner, the fact finding forum, and his findings must be accepted if there is any substantial credible evidence in support thereof. Edge v. City of Pierre, supra.

The statute, SDC 1960 Supp. 64.0102(4), defines injury for which compensation may be awarded as only injury by accident arising out of and in the course of the employment. The parties stipulated and the court found King was in the course of employment at the time of his death. We are concerned with whether King's death arose out of his employment. Of course, if King died from natural causes, it was not caused by accident within the purview of the Workmen's Compensation Law.

The words 'by accident' as used in the statute have been said to mean that the injury or death is unlooked for and unexpected; it is not necessary that the cause itself should be untoward or unexpected occurring without design. Johnson v. La Bolt Oil Company, 62 S.D. 391, 252 N.W. 869; Meyer v. Roettele, 64 S.D. 36, 264 N.W. 191. Injuries are caused by accident according to the quality of the result rather than the quality of causes. Taylor Oil Co., v. Imperial Casualty & Indemnity Company, S.D., 144 N.W.2d 856. We believe the record shows there was an accident when the truck King was operating in the course of his employment left the road and overturned. The question for determination is whether King's death was caused by or resulted from such accident. If King was alive when the truck overturned, we believe the inevitable conclusion is and must be that his death occurred by accident arising out of his employment. The burden of proof is upon the claimant and it is not sustained when the probabilities are equal. Mehlum v. Nunda Cooperative Ass'n, 74 S.D. 545, 56 N.W.2d 282.

In Anderson v. Hotel Cataract, 70 S.D. 376, 17 N.W.2d 913, this court read the words 'arising out of * * * the employment' according to their natural and ordinary meaning in holding that an assault upon an employee by another employee causing death arose out of his employment. The court said 'But for that employment and the presence of the decedent at his post of duty in the engine room, the assault would not have been made.' The Commissioner had denied compensation. The circuit court reversed and this court affirmed the circuit court.

In Bergren v. S. E. Gustafson Construction Co., 75 S.D. 497, 68 N.W.2d 477, the Commissioner denied compensation and the circuit court reviewed the record on appeal and concluded the single reasonable inference to be drawn from the undisputed facts was that an employee's death from lightning while working arose from the employment and was compensable. Referring to the Anderson case, supra, the Minnesota court in Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 297 N.W. 19, 21, was quoted: 'The words, 'in the course of' impose a requirement in respect to time and place. The phrase 'out of' expresses a factor of source or contribution rather than cause in the sense of being proximate or direct.' See also Krier v. Dick's Linoleum Shop, 78 S.D. 116, 97 N.W.2d 486.

When claimant's decedent was found dead along a highway in a wrecked automobile 'which had run off the highway embankment into a ditch, and turned over,' and apparently alone, an award was allowed in holding the evidence sufficient to show death arising out of and in the course of employment. Leach v. J. I. Case Threshing Machine Co., 53 S.D. 13, 219 N.W. 884.

This court has heretofore not had occasion to consider unexplained deaths in workmen's compensation cases, but most courts when confronted with the problem have adopted the rule that when an employee is found dead under circumstances indicating death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, there is a presumption or inference that death arose out of the employment. Larson, Workmen's Compensation Law, Vol. 1, § 10.32. In such text jurisdictions so holding are listed as well as those committed to what is termed the minority view. See also Schneider, Workmen's Compensation, Vol. 4, § 1334; 58 Am.Jur., Workmen's Compensation, § 437. In our opinion the rule stated is sound and we adopt it. It reflects the liberal intent and purpose of the Workmen's Compensation Act.

The reason for the rule appears in Chillstrom v. Trojan Seed Co., 242 Minn. 471, 65 N.W.2d 888: 'In unwitnessed death cases, as here, the claimant is placed in an extremely difficult position. * * * 'The death of the employee usually deprives the dependent of his best witness--the employee himself--and, especially where the accident is unwitnessed, some latitude should be given."

The presumption, however, is a procedural presumption and disappears when the employer produces rebutting evidence on the issue and thereafter the issue must be determined on the evidence as though no presumption had ever existed. In this state the presumption is not weighed as evidence although some states have taken a contrary position and give evidentiary effect to a presumption. See Annot. in 5 A.L.R.3d, § 3(b), p. 35. In an early and often cited case, Peters v. Lohr, 24 S.D. 605, 124 N.W. 853, 855, this court said:

'A presumption is not evidence of anything, and only...