Piper v. Neighborhood Youth Corps, 11729

• Decision Date: 13 May 1976
• Docket Number: No. 11729,11729
• Parties: Mildred PIPER, mother, heir and beneficiary of Rick Gordon Randolph, Deceased, Claimant and Respondent, v. NEIGHBORHOOD YOUTH CORPS, Employer, Insured and Appellant, and St. Paul Insurance Companies, Insurer and Appellant.
• Court: South Dakota Supreme Court

Page 868

241 N.W.2d 868

90 S.D. 443

Mildred PIPER, mother, heir and beneficiary of Rick Gordon Randolph, Deceased, Claimant and Respondent, v. NEIGHBORHOOD YOUTH CORPS, Employer, Insured and Appellant and St. Paul Insurance Companies, Insurer and Appellant.

No. 11729.

Supreme Court of South Dakota.

May 13, 1976.

Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for appellants.

Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, for respondent.

WINANS, Justice (on reassignment).

This is a Workmen's Compensation case. The deceased, Rick Gordon Randolph, lived with his natural mother, Mildred Piper, the claimant, and Rex Piper, his stepfather. The deceased was hired by the Neighborhood Youth Corps on a summer job in 1972. At lunch time on the first day of his job at Angostora Dam, the decedent went to rest on a raft which lay partly on the shore. The raft floated away from the shore, Rick jumped into the water and drowned.

The Director of Department of Manpower Affairs (Director) found that the accident was within the scope of the decedent's employment and the trial court affirmed this part of the Director's decision. The Director also found that the claimant's assertion of dependency could not be sustained. The trial court, however, reversed this portion of the Director's decision.

We affirm the trial court's decision as to scope of employment but reverse the trial court's decision as to dependency.

The threshold question is the proper scope of review by this court of a review by the circuit court of an administrative finding under the APA.

Although not always made explicit, our cases reveal that in reviewing the circuit court's judgment under the APA this court must make the same review of the administrative tribunal's action as does the circuit court under SDCL 1--26--37. Furthermore, this court must make its decision as to whether the administrative decision can be sustained unaided by a presumption that the circuit court's decision is correct. See Application of Ed Phillips & Sons Co., 1972, 86 S.D. 326, 195 N.W.2d 400; Valley State Bank of Canton v. Farmers State Bank of Canton, 1973, 87 S.D. 614, 213 N.W.2d 459; Lemke v. Rabenberg's, Inc., 1975, S.D., 233 N.W.2d 336. See also Application of Jones, 1975, S.D., 231 N.W.2d 844. With this consideration in mind we turn to the substantive issues.

The first substantive question presented is whether the decedent was within the 'scope of his employment' when he drowned in Angostora Dam during his lunch hour.

The parties agree and we find that an injury may be compensable under the Workmen's Compensation Law even though it occurs during a lunch hour break. This would appear to follow naturally from our decision in Krier v. Dick's Linoleum Shop, 1959, 78 S.D. 116, 98 N.W.2d 486, in which we recognized that an injury which occurred when one was returning from dinner after working hours was compensable when one was required by his employment to be away from his home. See also, 1 Larson's Workmen's Compensation Law, § 21.21(a).

Although acceding to the foregoing principle, the defendant vigorously contends that the decedent had abandoned his employment when he began to rest on the raft. The Krier case offers us guidance as to the point at which one attending to his personal needs so deviates from his employment as to lose the protection of the Workmen's Compensation Act. In Krier we said:

'The controlling factor is whether claimant was engaged in doing something which he might reasonably be expected to do while in the performance of his duties.' ¹

We found in Krier that the employee had not deviated from his employment when he traveled two and one-half miles outside of the city in which he was staying overnight so as to eat at a particular restaurant.

The evidence in the case before us as to this point is as follows. The decedent was a sixteen-year-old boy. He was taken to a work site at Angostora Dam about 11 miles from his home. He was, by force of this circumstance, compelled to stay on the employer's grounds. According to the supervisor of the boys, the decedent, along with the rest of the boys, was warned at lunch time that he could not go swimming. However the supervisor's testimony also indicated that the boys were expected to congregate by the shore during their lunch break and that there was nothing forbidden about this. The supervisor said:

'Well, two of the boys finished eating first and Rick and Montgomery, they ate their lunch, finished before the rest of us did, myself and the two other boys, and they started walking around the shoreline which was all right with me. Wasn't supposed to be working that time of the day and the other two stood by the pickup . . . (later) I was going to get Rick and Montgomery. I figured they were at the shore.'

The record shows that the two boys discovered a raft which was lying partially on the shore. The two boys jumped or stepped onto it, lay on their backs and rested for about 20 minutes. At about that time they discovered that the raft had become detached from the shore. The decedent's companion began to swim to shore while still fully dressed. The companion soon became tired and kicked off his new boots. At this point the supervisor appeared on a ridge overlooking the dam and shouted to the decedent that he should remain on the raft. We can infer from other testimony that the decedent could hear the shout but could not understand the words his supervisor was saying. The decedent then jumped, fully dressed, into the water. He soon drowned. His companion was unable to save him because the water was so dirty that his companion could not find him.

The case thus presents us with a question of fact: Was the decedent, by resting on a raft during the noon hour, engaging in an activity in which he might reasonably be expected to engage when he had previously been impliedly authorized to rest and relax on the shore of the dam but further when he had also been instructed not to swim in the dam?

The Director by implication found that the decedent could reasonably have been expected to rest on the raft even though he had been warned not to go swimming. The trial court agreed with the Director.

SDCL 1--26--36 sets out the guidelines for this court in reviewing such a determination. It states that 'The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.' Furthermore, the court may reverse the determination of the agency when its findings are '(5) Unsupported by substantial evidence on the whole record; (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.' (SDCL 1--26--36(1) through (4) are omitted because they are not at issue here.)

Our review of the evidence as recited above does not permit the conclusion that the Director's decision is 'unsupported by substantial evidence' or is 'arbitrary or capricious.' Instead it appears that the Director has carefully weighed the opposing inferences which may be drawn from the evidence and has arrived at an easily supportable judgment. We therefore affirm the Director's decision and that of the trial court that the action here was within the scope of the decedent's employment.

The second substantive issue we consider is whether Mrs. Piper was 'dependent' upon her son at the time of his death. SDCL 62--4--14. If dependency is established the claimant will be able to sustain her claim for a percentage of the salary which her son had been earning. If dependency is not established the claimant is limited to recovery of burial expenses not to exceed $1000, SDCL 62--4--16.

The Director found that dependency had not been established. The trial court reversed.

The South Dakota cases are not of great assistance in defining the term 'dependency' in any context, including that of a child's support of a parent. The South Dakota Code from 1939 to 1945 did not even employ the term 'dependency' with regard to parents but instead allowed compensation to a surviving parent when the decedent was 'under a legal obligation to support' the parent at the time of the accident. See SDC 1939, 64.0402(1); SL 1945, Ch. 352 § 1. See Schwan v. Premack, 1945, 70 S.D. 371, 17 N.W.2d 911, 912. The same 'legal obligation to support' language survived from 1917 to 1973 with regard to whether a widow or child could receive death benefits. See SL 1917, Ch. 376, § 23; SL 1973, Ch. 312, § 1. (See Demaray v. Mannerud Construction Company, 1964, 80 S.D. 554, 128 N.W.2d 551, for an example of the limited case in which both the 'legal obligation to support' and 'dependency' language could come into play.)

Before enactment of the 1939 Code, however, South Dakota's Workmen's Compensation Law allowed compensation to a parent who was 'dependent upon him for support'. SL 1917, Ch. 376, § 23; RC 1919, § 9458(2). The identical language is employed in SDCL 62--4--14 which we consider today. The best considered of the cases decided under the 1917 terminology is Day v. Sioux Falls Fruit Co., 1920, 43 S.D. 65, 177 N.W. 816. There the court considered a situation in which a mother had received sums of $6.00 to $8.00 per week from her son for five or six years before the son left for service in World War I. This money was used for family expenses. The son did not make any payment in the two years he spent in the service but, in the twenty-five days after returning to his home, he paid a $30.00 grocery bill and a $17.50 house payment. The father was 44 years old, in 'good health', and regularly employed at $110 per month. One daughter also contributed $10 to the support of the home. The court held that the foregoing evidence constituted 'reasonable or substantial evidence' so as to sustain the finding of dependency made by the Commissioner.

The Day case thus implies that the court in 1920 felt that dependency could be established when the parents received regular...