Sanborn v. Farmers Union Elevator Co

• Decision Date: 08 July 1941
• Docket Number: 8385
• Citation: 299 N.W. 258,68 S.D. 138
• Parties: ALVIN D. SANBORN, Respondent, v. FARMERS UNION ELEVATOR CO., Employer, and South Dakota Employers Protective Association, Insurance carrier. Appellants.
• Court: South Dakota Supreme Court

68 SD 138, 299 NW 258 (1941)

ALVIN D. SANBORN, Respondent v FARMERS UNION ELEVATOR CO., Employer, and South Dakota Employers Protective Association Insurance carrier Appellants. South Dakota Supreme Court Appeal from Circuit Court, Turner County, SD Hon. L. L. Fleeger, Judge. #8385–Reversed. Caldwell & Burns, Sioux Falls, SD Attorneys for Appellant. Bielski, Elliott & McQuillen, Sioux Falls, SD Attorneys for Respondent. Opinion Filed Jul 8, 1941

WARREN, J.

The claimant for some time prior to July 20, 1937 had been employed by the Farmers Union Elevator Company in servicing farm machinery in connection with part of its business as it was the local representative of the John Deere Plow Company, The defendant carried no skilled mechanics in its employ. For this reason when servicing of farm machinery was necessary, it called upon claimant who had special skill along this line. In addition to servicing machinery claimant at times assisted in the office and made demonstrations for the company. The company when requiring claimant’s services would advise him when it wished the work done. The claimant would then proceed to do the work and would receive his compensation from the company. He was not paid specific amounts for each particular piece of work that was done, but after doing various items of work he would have a settlement with the company. Neither the company nor the claimant kept any record as to the time that was put in nor the amount earned. He was not carried on the payroll. Neither it nor the claimant knew the number of times that he had worked for the company in the year preceding the injury. It would seem that claimant operated a 250 acre farm in the vicinity of Hurley, South Dakota, which he took care of in addition to assisting the company when the regular employees were unable to do the work.

In July, 1937, the manager of the elevator company called the claimant in to start a new tractor. While doing so claimant sustained an injury to his right knee and his back. After the injury the record discloses that claimant was able to do chores around the farm within a month and did other farm work within three months after his injury. In the summer of 1938 he again did two or three service jobs for the elevator company. At the completion of the reception of the evidence the Commissioner made findings, conclusions, and an award favorable to the claimant. A petition for review was made and upon consideration denied. Thereafter an appeal was taken to the Circuit Court which resulted in a judgment entered by the court sustaining the award.

Appellants in their assignments of error assert that the undisputed evidence shows that the claimant at the time of his injury was an independent contractor and not an employee of the elevator company. A review of the evidence covering the claimant’s status seems to indicate that the record does not warrant concluding that he was an independent contractor.

In deciding the issues presented by this appeal certain sections of our statutes become important as the claimant must show affirmatively that the facts fall within the requirements of our Workmen’s Compensation Law before he may receive an award and be compensated for his loss of earnings. Sections viz. SDC 64.0403 as amended by Ch. 297, SD Session Laws 1939, and (1), (3), and (5) thereof relating to compensation for injury, how computed and paid, and (b) of (1) and (2) of SDC 64.0404 entitled “Basis of computation” seem to point out the way and become controlling over the facts in the instant case in this: That the claimant must prove earnings, both before and after the time that the injury occurred in order to place before the commissioner the true earning power before and after the injury so that he may be able to determine and make his award in conformity to the provisions of our laws as applied to the f acts.

In the instant case it is charged that there is a lack of definite evidence as to the claimant’s earnings which is one of the essential requirements of (1) of SDC 64.0403. We examine the record for the errors complained of by the appellants who charge that the findings as to the annual earnings of the claimant in his employment with the defendant Elevator Company rest on insufficient evidence and find that the evidence is weak and it fails to support the findings and conclusions made by the commissioner. From an examination of the record we observe that there is some opinion evidence by claimant as to his annual earnings, but to make an award based upon any fixed amount of earnings as the record now stands, that, we feel is impossible.

The claimant in the trade of a mechanic was called upon occasionally by the elevator company to repair machinery. For this he was paid by the job. Sometimes his remuneration was in cash. Sometimes it was in supplies such as flour, feed, or coal, or he was given credit on his account with the company. For short jobs he was allowed $1.00 an hour and for longer jobs $.75 per hour. His testimony falls short of being anything but speculation and guess as to the amount of labor he performed for the appellants.

When claimant was asked how much money he made the year preceding the accident he answered, “I couldn’t say”. He was then asked to make an estimate, and over an objection he stated, “I would have to know about how much repairs of machinery I had done in a year”. In reply to a question as to doing certain work he stated, “I couldn’t say exactly because I never kept any track of the dates I was in there”. He was asked if he had a written record of the time that he worked for the elevator company, He said, “No”. Later claimant was asked as to what, in his opinion, his annual earnings were in the year preceding the injury. The objection interposed was overruled on the theory that an original memorandum would be produced subsequently. The claimant said that it would amount to between four and five hundred dollars a year. A closing part of his answer reads: “It was awfully hard to come to any definite figure because neither one of us had ever made any account of it”. He was of the opinion that it was around $500 and he was of the opinion that it would run all the way from...