Schumacher v. Schumacher

• Citation: 288 N.W. 796,67 S.D. 46
• Decision Date: 07 December 1939
• Docket Number: 8286.
• Parties: SCHUMACHER v. SCHUMACHER et al.
• Court: Supreme Court of South Dakota

288 N.W. 796

67 S.D. 46

SCHUMACHER v. SCHUMACHER et al.

No. 8286.

Supreme Court of South Dakota

December 7, 1939

Appeal from Circuit Court, Hutchinson County; A. B. Beck, Judge.

Proceeding under the Workmen's Compensation Law by Leonard Schumacher, employee, opposed by George M. Schumacher employer, and the South Dakota Employers Protective Association, insurer, for injuries sustained by employee while operating a tractor on employer's farm. From a judgment of the circuit court affirming a decision of the Industrial Commissioner awarding compensation to plaintiff the employer and the insurer appeal.

Judgment affirmed.

Caldwell & Burns, of Sioux Falls, for appellants.

M. C Sullivan, of Parkston, and Fred D. Shandorf, of Mitchell, for respondents.

ROBERTS Judge.

This is an appeal from a judgment of the circuit court of Hutchinson County affirming a decision of the industrial commissioner awarding compensation to the plaintiff for injuries sustained while operating a tractor on his father's farm. The award was resisted on three grounds: First, that the plaintiff had no contract of employment with his father, George M. Schumacher, and that the relation of employer and employee did not exist between them because they were engaged in a joint enterprise; second, that respondent as a farm laborer was excluded from the operation of the workmen's compensation act, and that the father was not required to insure and did not insure any liability to persons engaged in the ordinary work of farming; and third, that there is no basis in the evidence for computation of compensation.

The findings of fact of the industrial commissioner are to the effect that the father resided upon and operated a farm of 800 acres in Hutchinson County; that respondent was employed as a laborer on this farm by his father; that the father for the protection of persons employed by him procured compensation insurance from the appellant, the South Dakota Employers' Protective Association; that respondent sustained an accidental injury arising out of and in the course of his employment; and that respondent was entitled to the sum of $200 for medical service and hospital care and the further sum of $7.50 per week during the period of his disability.

The first question is whether the evidence justified the determination that the relation of employer and employee existed at the time of the accidental injury. As a basis for recovery under the workmen's compensation law, a contract of employment, either express or implied, must exist. § 9490, Rev.Code 1919; Bergstresser v. City of Willow Lake, 63 S.D. 386, 259 N.W. 276. Services voluntarily and gratuitously performed create no liability. Respondent twenty-eight years of age, resided at home and was working as a farm hand for his father at the time of his injury. Board and lodging were furnished to the respondent as the result of an arrangement between the father and son. The father bought his clothing and took care of other personal expenses including the payment of life insurance premiums and church and lodge dues. Under the arrangement with his father respondent was also to receive a share of the crops grown on a designated tract of land. Respondent testified: "For the past three years we rented a half section north of our place. There are three of us boys over twenty-one. We worked to receive a share of that crop as wages. Dad furnishes all seed, machinery and operating costs. I worked for my father other than on this half section. I am employed there the year round. * * * My brothers and I get the crop from the half section which is rented except the share taken out to be given to some loan company." This testimony is corroborated by the father. If the testimony is to be believed, there was an express agreement between the respondent and his father creating a valid contract for services. The fact that the services were not to be compensated by the payment of wages did not alter the relation of the parties. The workmen's compensation law (§ 9490, supra) defines an employer as "any individual, firm, association or corporation * * * using the services of another for pay." "Pay" here means compensation, and whether respondent received his compensation for services in money or other valuable consideration is immaterial. Smith v. Jones, 102 Conn. 471, 129 A. 50, 43...