Leach v. J.I. Case Threshing Mach. Co.
| Decision Date | 16 June 1928 |
| Docket Number | 6129. [*] |
| Citation | 219 N.W. 884,53 S.D. 13 |
| Parties | LEACH v. J. I. CASE THRESHING MACH. CO. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Edmunds County; J. H. Bottum, Judge.
Proceeding under the Workmen's Compensation Law by Mary Jane Leach mother of deceased, opposed by the J. I. Case Threshing Machine Company, employer. From judgment affirming an award the employer appeals. Affirmed.
Case & Case, of Watertown, for appellant.
Campbell & Fletcher, of Aberdeen, for respondent.
This is an appeal from the circuit court of Edmunds county affirming an award of the board of arbitration and industrial commissioner in a proceeding for compensation under the provisions of sections 9436 to 9491, inclusive, R. C. 1919, and acts amendatory thereof, known as the Workmen's Compensation Law. John H. Leach was killed in an automobile accident in Edmunds county on the 3d day of December, 1924. At that time he was in the employ of the J. I. Case Threshing Machine Company as a traveling salesman, and had been so employed for many years. His mother filed a claim against the company for compensation under the Workman's Compensation Law.
Compensation was allowed, and the company appeals.
The matter was heard first before a board of arbitration, then on review before the industrial commissioner, and on appeal before the said circuit court. Some of the procedure in the circuit court was not applicable to such appeals, as outlined in Wieber v. England (S. D.) 216 N.W. 850. The court's rulings on the admission and rejection of evidence cannot be considered, nor can its refusal to make requested findings be considered, since findings by the court are not required, nor does the court receive evidence. Its functions are confined to a review of the record brought before it from the board of abitration and industrial commissioner. The trial court in legal effect affirmed the decision of the board and commissioner. As the record is now before us, we will review it under the assignments of error challenging the conclusions of law and the sufficiency of the evidence to support the findings of the board and the commissioner. The competency of the evidence will be considered only in connection with the sufficiency of the evidence as a whole, and, if there is reasonable and substantial competent evidence to support such findings, they will not be disturbed. Day et al. v. Sioux Falls Fruit Co., 43 S.D. 65, 177 N.W. 816; Vodopich v. Trojan Mining Co., 43 S.D. 540, 180 N.W. 965; Dependents of Shaw v. Harms Piano Co., 44 S.D. 346, 184 N.W. 204; Wakefield v. Warren-Lamb Lumber Co., 46 S.D. 510, 194 N.W. 835; Wieber v. England et al., supra.
Appellant claims the evidence is insufficient in two particulars; namely: First, that it does not show that deceased was acting in the course or within the scope of his employment at the time he met his death, because there is no proof that he was out upon any mission for appellant, in the discharge of any duty as an employee, or in the course or scope of his employment, but that he must have been out upon private business of his own, and for that reason the company is not liable; second, that the evidence does not show that claimant, Mary J. Leach, was a defendant upon deceased at the time of his death.
The board of arbitration found against appellant in both particulars. Under the Workman's Compensation Law the employer is bound to pay compensation in the manner and to the persons named in section 9458, R. C. 1919, where the death is by accident arising out of and in the course of employment. There is no substantial dispute as to the evidence. The manner of death is not disputed, but that it arose out of and in the course of his employment is disputed. Appellant maintains an office in Aberdeen, and in the evening of December 2, 1924, the day preceding the death of Leach, there was a meeting of the employees of the company, and it was arranged that deceased should go to McLaughlin the following day on business for the company, and, according to the arrangements then made, he was expected to leave on the morning train leaving Aberdeen about 6 o'clock. He failed to leave as expected, and about 1 o'clock in the afternoon of the 3d, the day he was killed, he was in the company's office, and in a conversation with a friend, Clarence Walker, in the presence of one of the employees he said that he was going out to Hosmer to sell an engine, and was also going to stop at Ipswich, Beebe, and Roscoe, The three stations last named are stations on the railroad between Aberdeen and McLaughlin, and Hosmer is in the general direction of McLaughlin on a branch line a short distance north of Roscoe. McLaughlin is distant from Aberdeen to the northwest more than 100 miles. In the conversation with Walker there was something said about Walker going with deceased to Hosmer, and deceased said he did not expect to be back that night.
After this conversation, deceased left the office, got into a Ford coupé and drove toward the Yellowstone Highway, a state trunk highway passing through McLaughlin. This was the last seen of him alive. About 3:30 the same afternoon he was found dead along the Yellowstone Highway about 11 1/2 miles west of Aberdeen near a wrecked Ford coupé, which had run off the highway embankment into a ditch, and turned over. He was apparently alone at the time of the accident. In the car was found a suitcase containing wearing apparel, and a portfolio containing papers, letters, and matters pertaining to company business. There is no evidence that there were any papers or effects pertaining to private business of his own. The car, when it left the highway and was wrecked, was coming toward Aberdeen. There is no evidence that he met any one or transacted any business after leaving the office at Aberdeen, and, except such inferences as may be drawn from the circumstances, there is no evidence of where he had intended to go, why he was returning, nor on what business he was engaged when the accident occurred. There is proof that the company had no business for attention by deceased at any of the stations named other than McLaughlin, and there is also evidence that employees of the company were forbidden to use their own cars in company business. For some time immediately preceding the accident, however, the company furnished to deceased a Chevrolet car owned by the company, and deceased had been in the habit of driving it on the company's business. The day before the accident deceased had informed an employee of the company that he could sell the Chevrolet coupé for $250, but that he would have to sell it on time. This was objected to; the price being satisfactory, but the company being unwilling to sell on time. Deceased then purchased the Chevrolet car, and gave his check for $250, and this check was in possession of the company at the time of the accident. Deceased was employed by the month, and his wages were paid for the first three days of December, which included the day of his death. Appellant claims that this is insufficient to show that the death arose out of and in the course of his employment.
Deceased being a traveling salesman and collector, it is not as easy to determine when he was acting within the course of his employment as if he had a regular place of employment with fixed hours of service. Such employment is necessarily without fixed hours or place of service, and no doubt involves some discretion in matters of time and place. Such employee would be in the course of his employment while traveling to and from a point where business for the company calls him, in conveyances furnished or allowed to be used by the company. An automobile was not a forbidden conveyance, nor was he forbidden to drive a car himself as a means of travel, and up until the day preceding his death the company had furnished him with a car to use and drive. True, there was a rule forbidding the use of one's own car on behalf of the company, but this rule concerned the title, and not the character, of the conveyance. The reason for this rule is not given, but it could not have been to insure greater safety. The fact that he was driving his own car does not put him without the scope of his employment if he was in fact engaged in the company's business, but it is a circumstance tending to show that he was not so engaged. There are few, if any, other circumstances showing that he was engaged in business of his own. He had planned to go to McLaughlin for the company. He had planned to go on the morning train, but had not done so. This was known to the company's office at Aberdeen the next day, and no objection was made. He left the company office when he started out, and went towards McLaughlin, and stated he would not be back that night. If he had private business at stations on the way that might account for his taking his own car, but if his ultimate destination was McLaughlin on the business of the company, and no objection was made to his mode of travel or stops to be made on the way, we do not think that would put him out of the course of his employment. He had company papers with him, and was apparently equipped to serve the company in due...
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