Montange v. C.A. Wagner Construction Co.

• Decision Date: 25 February 1938
• Docket Number: 8083
• Citation: 66 S.D. 48,278 N.W. 176
• Parties: ROBERT MONTANGE, Respondent, v. C.A. WAGNER CONSTRUCTION CO., et al., Appellants.
• Court: South Dakota Supreme Court

66 S.D. 48

278 N.W. 176

ROBERT MONTANGE, Respondent,

v.

C.A. WAGNER CONSTRUCTION CO., et al., Appellants. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. E.E. Wagner, Judge #8083—Reversed and Remanded Van Slyke & Agor, Aberdeen, SD Attorneys for Appellants. D.M. Joyce, Aberdeen, SD W.F. Bruell, Redfield, SD Attorneys for Respondent. Opinion Filed Feb 25, 1938

POLLEY, Judge.

This case was initiated before the industrial commissioner to recover for an injury alleged to have been sustained by plaintiff while in the employment of the Wagner Construction Company, one of the defendants. A hearing was had before the industrial commissioner. At the close of the hearing the commissioner made and entered findings of fact and conclusions of law as follows:

“The court finds from the evidence that plaintiff and employee, Robert Montange, while in the employ of the C.A. Wagner Construction Company, employer, did voluntarily become intoxicated through the excessive use of intoxicating liquors, while upon a highway operating a truck; that he did, on or about August 13, 1934, permit the truck which he was driving to be overturned in a ditch by the side of the highway in the north part of Brown County, South Dakota, due entirely to the intoxicated condition in which the claimant placed himself voluntarily, whereby he was incapable of and incompetent to drive such truck.

The court further finds from the evidence that the said plaintiff employee was not injured in any respect or in any manner under which he might recover compensation under the Workmen’s Compensation Act, and that he received no permanent or substantial injury of any kind or character whereby he was prevented f rom carrying on his usual work.

The court finds as a conclusion of law, that the plaintiff employee was under the influence of liquor and was intoxicated at the time of the alleged injuries, to such extent that he was incapable of operating a truck which he was attempting to do, and by reason thereof, he is not entitled to compensation under the Workmen’s Compensation Act.

That the plaintiff and employee received no injury as a result of said accident for which he could be compensated under the Workmen’s Compensation Act of this state.”

And upon such findings of fact and conclusions of law made and entered the following judgment:

“From the foregoing findings of fact and conclusions of law the Industrial Commissioner entered the following judgment on June 19, 1936:

‘It is, therefore, ordered and adjudged that the plaintiff and employee have and recover no sum whatever from the defendants for the following reasons:

1. That the said plaintiff and employee received no injuries, as alleged in his claim herein, for which he could b e compensated under the Workmen’s Compensation Law.

2. That said plaintiff and employee was, at the time of the alleged injuries, in an intoxicated condition, due to excessive use of intoxicating liquors whereby he was rendered incapable of performing his work and whereby he did, while in such intoxicated condition, overturn the truck which he was operating, solely by reason of his own acts.’”

Thereafter, the commissioner entered an order denying the plaintiff’s application for a review of the case, and from this order plaintiff took an appeal to the circuit court of Brown County. Upon this appeal the circuit court, upon the transcript of the testimony taken by the commissioner, made findings of fact and conclusions of law favorable to the plaintiff, and entered judgment awarding to plaintiff damages, in a very substantial amount. From this judgment, the defendants appeal to this court.

It is contended by appellant that in the making of findings of fact, conclusions of law, and entering judgment the circuit court exceeded its jurisdiction; appellant contending that the jurisdiction of the circuit court extended only to an affirmance of the judgment of the commissioner, if the same was supported by any reasonable, credible, and substantial evidence; or in case he found that the judgment was not supported by any reasonable, credible, or substantial evidence, to either reverse the judgment and dismiss the action or to remand the same to the commissioner for a new trial or such other proceedings as might be proper in the case. This we believe to be the correct rule. Monark Battery Co. v. Industrial Commission, 354 Ill. 494, 188 N.E. 413; Allen Son & Co. v. Industrial Commission, 349 Ill. 71, 181 N.E. 625; Cook County v. Industrial Commission, 327 Ill. 79, 158 N.E. 405; Superior...