Krier v. Dick's Linoleum Shop

• Decision Date: 15 October 1959
• Docket Number: No. 9778-,9778-
• Citation: 98 N.W.2d 486,78 S.D. 116
• Parties: Cleo KRIER, Plaintiff and Respondent, v. DICK'S LINOLEUM SHOP, and Western Surety Company, Defendants and Appellants. a.
• Court: South Dakota Supreme Court

Page 486

98 N.W.2d 486

78 S.D. 116

Cleo KRIER, Plaintiff and Respondent, v. DICK'S LINOLEUM SHOP, and Western Surety Company, Defendants and Appellants.

No. 9778-a.

Supreme Court of South Dakota.

Oct. 15, 1959.

Kirby, McDonnell & Kirby, Sioux Falls, for defendants and appellants.

William K. Sahr, Pierre, for plaintiff and respondent.

ROBERTS, Judge.

This is an appeal to review a judgment of the Circuit Court of Hughes County affirming the decision of the Industrial Commissioner holding that claimant sustained a compensable injury under the Workmen's Compensation Law (SDC 64).

The material facts are not in dispute. Cleo Krier was an employee of Dick's Linoleum Shop which has its place of business in Pierre, South Dakota. We quote the sailent portions of the findings of fact: 'On November 4, 1957 the employer took the claimant, also from Pierre, to Chamberlain to complete work on the job which had started the previous week. The employer returned to Pierre later on in the day but before leaving he made arrangements for the claimant to stay at a certain hotel and gave him an amount of money to cover expenses for food and lodging while the employee completed the work in Chemberlain. The claimant worked until about 9:00 or 9:30 o'clock the evening of November 4th and after cleaning up he drove in his employer's truck to Al's Steak House located about two and one half miles west of Chamberlain. After eating his dinner and while enroute back to his hotel, claimant had an accident with the truck, resulting in his temporary and total disability from work until December 2, 1958. * * * The employer did not instruct the employee to go to any particular place to eat, however, he had mentioned and recommended to the claimant that this steak house was a place where a good meal could be had.'

The sole question on appeal is whether a compensable injury was sustained by claimant. An employer is liable to an employee only for an 'injury by accident arising out of and in the course of the employment'. SDC 64.0102(4); Driessen v. Schiefelbein, 67 S.D. 645, 297 N.W. 685. It is conceded that there was an 'injury by accident' as those words are used in the act. For an injury to arise out of 'the employment,' it is necessary and sufficient that there be a causal connection between the injury and the employment, but the employment need not be the direct or proximate cause of injury, it being sufficient if the accident had its origin in the hazard to which the employment exposed the employee while doing his work. Anderson v. Hotel Cataract, 70 S.D. 376, 17 N.W.2d 913; Bergren v. S. E. Gustafson Construction Co., 75 S.D. 497, 68 N.W.2d 477. The words 'in the course of' refer to the time, place and circumstances under which the accident took place. The contents of the statute do not limit the application to the periods during which an employee is actually engaged in the work that he is hired to perform. In Meyer v. Roettele, 64 S.D. 36, 264 N.W. 191, it was held that where a member of a threshing crew became will while partaking of toxin infested food furnished by the farmer employing the crew the eating of a meal was so incidental to his employment that the resulting death arose out of and in the course of the employment. In other words, an employee is within the course of his employment if what he is doing is naturally related or incidental to his employment or he is doing that which his contract of employment expressly or impliedly authorizes. Wilson v. Dakota Light & Power Co., 45 S.D. 175, 186 N.W. 828; Jacobson v. Strong & Waggoner, 66 S.D. 552, 287 N.W. 41; Lang v. Board of Education, 70 S.D. 343, 17 N.W.2d 695.

Claimant was taken away from his home by reason of his employment and was paid expenses incurred for lodging and meals. The 'course of the employment' of an outside employee is necessarily broader than that of an ordinary employee. His work creates the necessity of staying at hotels, eating at various...