Richardson v. Farmers' Co-Operative Union
| Decision Date | 31 March 1922 |
| Docket Number | No. 4990.,4990. |
| Parties | RICHARDSON v. FARMERS' CO-OPERATIVE UNION. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Brule County; Frank B. Smith, Judge.
Action by Clark Richardson against the Farmers' Co-Operative Union, a corporation. From a judgment dismissing the action, the plaintiff appeals. Reversed.Spangler & Wire, of Mitchell, for appellant.
Brown & Brown, of Chamberlain, and J. E. House, of Kimball, for respondent.
Action for damages for personal injuries sustained by plaintiff, an employé of defendant, in defendant's grain elevator. On the trial the court sustained defendant's objection to the introduction of any evidence upon the ground that the complaint did not state a cause of action, and directed the jury to return a verdict for defendant. From a judgment dismissing the action plaintiff appeals.
Brushing aside the technicalities of rules of pleading, the question before us is this: Does the failure of an employer to carry the insurance required by sections 9439 and 9482, Rev. Code 1919, who has not been relieved therefrom under section 9488, amount to an election on the part of the employer not to operate under the Workmen's Compensation Law? For brevity we will hereafter refer to the Compensation Law as the “act.”
In the first instance we may observe that the apparently conflicting provisions of the act render the solution of the problem difficult. Respondent contends that all employers subject to the act are presumed to have accepted the provisions of the act; that the only method open to an employer who is subject to the act to exempt himself from it is by giving the notice mentioned in section 9438; that section 9440 provides that the rights and remedies given to the employé are exclusive; that by the provisions of section 9482 the liability of an employer who does not carry insurance is the liability arising under sections 9436 to 9454, inclusive, of which section 9440 is, of course, a part. But respondent is candid enough to admit that the result of his reasoning imposes upon the employer who has not furnished insurance the same liability as if he had insurance. If this theory is right a premium is placed upon neglect to carry insurance because the employer would have all of the benefits of the act without incurring the expense of insurance.
Appellant contends that the failure to carry insurance by the employer is an election not to operate under the act, and that in such case the employer is subject to an action at law in which the amount of his recovery is not limited by the act, and in which if the employé is under the act, the employer may not defend upon the ground of contributory negligence, negligence of a fellow servant, nor assumption of risk.
In the first place section 9437 does not state that every employer is presumed to have accepted the act unless he has given notice. It says that he is presumed to have accepted the act “except as stated in this article.” In the next place we fail to find in section 9438, or in any other portion of the act, an express statement that the giving of notice is the only method of exemption from the operation of the act. It is true that section 9440 purports to make the rights and remedies given an employé by the act exclusive of all other rights and remedies. The rights and remedies given to the employé by the act include the right to a speedy determination out of court (unless appeal is taken) before a board of arbitration of the fact and amount of the employer's liability and a provision for compulsory payment covered by insurance that the award will be paid. In exchange for these rights and remedies the amount of the employé's recovery is limited by a compensation schedule. It cannot be said that the right to maintain an action at law against a nonaccepting employer is given by the act. That right is given by the Constitution and laws of this state. Section 9440 must be construed with section 9444, and as so construed section 9440 must be held to apply only to the rights and remedies against an employer who is operating under the act because section 9444 expressly recognizes the right of an employé who has accepted the act to maintain an action at law against an employer who has not accepted it.
Section 9439 reads as follows (italics are ours):
“ Every employer coming within the compensation provisions of this article shall insure the payment of compensation to his employés in the manner hereinafter provided, and while such insurance remains in force he,
or those conducting his business, shall only be liable to any employé for personal injury or death by accident to the extent and in the manner hereinafter specified.”
The clear intent of this section is to restrict the amount of the employer's liability to the amounts specified in the compensation schedules of the act only when the employer has insurance. There is no provision in the act by which the Industrial Commissioner can allow an employé a sum greater than the schedule. It is only by an action at law that a sum greater than the schedule can be obtained. Therefore it would seem evident that if the employer fails to insure his liability to his employé he is subject to an action at law. But respondent chiefly relies upon section 9482, which is as follows:
...
To continue reading
Request your trial