Pulcifer v. Henry Carlson Builders, 8948
| Decision Date | 20 February 1948 |
| Docket Number | 8948 |
| Citation | 31 N.W.2d 239,72 S.D. 130 |
| Parties | DONALD L. PULCIFER, v. HENRY CARLSON BUILDERS and Employers Mutual Liability Ins. Co. of Wisconsin. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Beadle County, SD
#8948—Reversed
Royhl & Longstaff, Huron, SD
Attorneys for Plaintiff and Respondent.
Davenport, Evans & Hurwitz, Sioux Falls, SD
Attorneys for Defendants and Appellants.
Opinion Filed Feb 20, 1948; Rehearing Denied Mar 26, 1948
An employer and its carrier of workmen’s compensation insurance appeal from a judgment which sets aside an instrument by which the employee releases the employer from all claims in consequence of a described injury.
On October 23, 1945, the employee suffered an injury to his left arm arising out of and in the course of his employment. He remained away from work under treatment by his physician until Monday, the 5th day of November 1945. Upon return to work he executed an agreement with the insurance carrier that names the employer and employee, describes the date, place, nature and cause of his injury, and reads in part as follows:
“The terms of this agreement under the above facts are as follows: That the said Donald L. Pulcifer shall receive compensation at the rate of $15.00 per week based upon the average weekly wage of $40.25 and that said compensation shall be payable from and including the 10-30-45 day of ___________ 194__, until terminated in accordance with the provisions of the Workmen’s Compensation Law of the State of South Dakota.”
At the same time a check for $12.50 was delivered to the employee and he executed an instrument entitled “Final Receipt and Release for Compensation Paid under South Dakota Workmen’s Compensation Law.” The above described agreements were filed with the Industrial Commissioner on November 15, 1945, and he noted his approval of the agreement first described by endorsement dated December 3, 1945. The employee worked from November 5 to and including December 22, 1945. Upon the advice of his physician, and because of pain, he remained away from work until the first days of February 1946. During the last days of January 1946 the insurance carrier paid the employee $62.50 by check which recited “Compensation from 11-3 thru 1-21-46.” Some ten days after the employee had again returned to work the carrier paid him $35 and he executed another like “Final Receipt and Release for Compensation Paid under South Dakota Workmen’s Compensation Law.” This instrument, as well as those we have previously described, was prepared upon a form supplied by the Industrial Commissioner and reads as follows:
“Received of Empl. Mutual Liab. Ins Co. the sum of Thirty-five and Dollars no/100 Cents ($35.00) Making in all, the weekly payments received by me, the total sum of One hundred ten and no/100 Dollars ... Cents ($110.00), such payment being the final payment of compensation under the South Dakota Workmen’s Compensation Law and in consideration of which I hereby release and forever discharge the said Henry Carlson Builders heirs, successors and assigns, from any and all actions, causes of action, claims and demands, for, upon, or by means of any damage, loss, injury or suffering which heretofore has been or which hereafter may be sustained by me in consequence of an injury suffered by me on or about the 23 day of October 1945, while in the employment of Henry Carlson Builders and returned to work 1-31-46.” This instrument was filed with the Industrial Commissioner on February 21, 1946, and was not dissapproved by him. Thereafter the employee continued to work for the employer until laid off for lack of work, and he has since worked at common labor for other employers.
On the 30th day of August 1946 the employee commenced this action. He alleged that his left arm has become permanently partially disabled as a consequence of the injury of October 23, 1945, that he has not been paid workmen’s compensation for such permanent partial disability, that his signature to the above described releases was procured by “fraud, misrepresentation and deceit” and that said releases are void because unsupported by a consideration, and prayed judgment setting aside said releases and declaring plaintiff “is not barred by any purported release or settlement from prosecuting his claim for prosecuting his claim for permanent disability to his left arm before the Industrial Commissioner of South Dakota.” The answer denied the disability, set up the described agreements of release and alleged that said Releases were duly filed and approved by the Industrial Commissioner of the State of South Dakota.
The employee was unable to sustain his allegation of fraud and misrepresentation. The disability about which he now complains had become apparent to him in February 1946. He had had the advice of his physician. That advice offered a hope of improvement but did not promise a normal arm. When the final release was signed the employer’s superintendent explained its character and legal effect and advised him not to sign it if his arm was not right. Therefore, the court found against him on the issue of fraud.
However, the court was of the opinion that the employee had adduced evidence from which the Industrial Commissioner might find the employee had suffered some permanent disability as a result of the injury in question for which he has not been compensated. It found the amounts received by the employee as consideration for the releases was the exact amount due for the temporary total disability resulting from the injury. Upon these facts, the court concluded as a matter of law “That the said release above described should be set aside, vacated and cancelled to the end that the plaintiff may make proof before the Industrial Commissioner as to the nature and extent of the disability and loss of use to his arm in order that the Industrial Commissioner may make an award in accord with the law and facts,” and such were the terms of its decree.
It is this legal conclusion which the employer and the insurance carrier question. They accept the factual premise found by the court.
Support for the judgment below obviously must be sought in some special public policy or statute abridging the freedom of contract of these parties. General principles support the release. Its all inclusive, clear and unambiguous phrases embrace the claim now made. The disability now said to be permanent was apparent at the moment the release was executed. The employee’s physician testified for him and said that while he honestly hoped it would get better, he warned him he was never going to have a normal arm. Under such a state of undisputed facts it cannot be claimed that the release was not intended to extinguish the present claim. Cf. SDC 47.0241 and Petersen v. Kemper, 70 SD 427, 18 NW2d 294. According to the general principles we are now considering, it was effective. It was in writing and in this jurisdiction an obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration. SDC 47.0240. Cf. Ellens v. Lind, 65 SD 620, 277 NW 40.
Thus we are brought to the contention so earnestly urged by counsel for the employee. According to this contention the right of the parties and the Industrial Commissioner to relieve the employer of any of his liabilities under the Workmen’s Compensation Act is denied by the public policy evidenced by the act as a whole and by the express language of SDC 64.0302, reading as follows:
“No contract or agreement, express or implied, no rule, regulation, or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this title except as herein provided.”
It should be observed that this is not a contention that such a release is voidable and may be set aside on equitable grounds. The contention is that such an instrument is legally ineffective as a release; that the parties and the Industrial Commissioner are without power to extinguish a just obligation for workmen’s compensation.
The contention is ruled adversely to the employee by the pronouncement of this court in Hines v. Ree Heights Implement Co., 65 SD 169, 272 NW 681. That decision reversed a judgment of the circuit court which had affirmed a further award by the Industrial Commissioner because the award was made after a like “Final Receipt and Release” had been executed and approved. The issue on appeal in that case was stated as follows:
Our decision further reads as follows:
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