Stratton v. Interstate Fruit Co.

• Decision Date: 28 May 1924
• Docket Number: 5247
• Citation: 47 S.D. 452,199 N.W. 117
• Parties: HERBERT M. SRATTON et ux., Plaintiffs and respondents, v. INTERSTATE FRUIT COMPANY, and the Continental Casualty Company, Defendants and appellants.
• Court: South Dakota Supreme Court

47 S.D. 452

199 N.W. 117

HERBERT M. SRATTON et ux., Plaintiffs and respondents,

v.

INTERSTATE FRUIT COMPANY, and the Continental Casualty Company, Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. L. L. Fleeger, Judge #5247--Affirmed Cherry & Marker, Sioux Falls, SD Attorneys for Appellants. Parliman & Parliman, Sioux Falls, SD Attorneys for Respondents. Opinion filed May 28, 1924

POLLEY, J.

This appeal grows out of an award made by the Industrial Commission for the death of Clarence Stratton. The claimants, Herbert Stratton and Nettie Stratton, are the father and stepmother, respectively, of the decedent. The defendant, Interstate Fruit Company, is a corporation engaged in the business of selling and distributing fruit, soft drinks, etc., to the trade in the city of Sioux Falls. The decedent was employed by defendant as a truck driver to deliver such commodities to the various customers of defendant in said city. Defendant resists payment of the award on the ground, first, that the evidence does not show that the claimants were dependent in any degree on the decedent for their support, and, second, that the injury that caused the death of decedent did not arise "out of and in the course of his employment."

Upon the first proposition the facts are very nearly parallel to the facts in the case of Day v. Sioux Falls Fruit Co., 177 N.W. 816. In that case the claimants were the father and mother, respectively, of the decedent. The evidence shows that at the time of the injury the decedent was earning $85 per month; that he lived with his parents, and contributed something monthly to their support. We held that the evidence was sufficient to show dependency. In the course of the opinion in that case we said:

"Where persons of limited means, such as respondents, and otherwise entitled to compensation, had actually received contributions for [their] support from the wages of the deceased employee, such facts would constitute evidence strongly tending to establish dependency"

citing In re Derinza, 229 Mass. 435, 16 NCCA 210; In re McMahon, 229 Mass. 48, 118 N.E. 189.

In this case the evidence shows that the decedent made his home with his parents; that they were without means other than the wages of the claimant Herbert Stratton; that the decedent was earning $120 per month; that he contributed something towards their support, and that in case of the disability of his father would have been obliged to contribute more. Following the same rule as we did in the Day case, we are of the opinion that, the evidence of dependency is sufficient to entitle the claimant Herbert Stratton to compensation.

The claim of appellant that the injury did not arise out of and in the course of decedent's employment is based upon the following facts: Appellant's place of business, and the place from which the commodities in which its deals are delivered, is situated on the corner of First avenue and Tenth street. The truck that was used by decedent, when not in actual use, was kept in a garage on Dakota avenue between Seventh and Eighth streets, three blocks west and two and one half blocks north of defendant's place of business. Decedent's home is situated on Minnesota avenue and Russell street, twelve blocks north and one block west of the garage where the truck was kept. On the morning of the injury that caused the death of decedent he left defendant's place of business with the truck loaded with a number of designated lots or orders of such commodities for such customers. The deliveries were all made as directed. The last place where a delivery was made was at the store of one Hassan Ballas. This store is situated on Main avenue and Russel street. From this place it is two blocks west and one-half block north to decedent's home, This delivery was made at just about 12 o'clock noon. After making this delivery, it was the duty of the decedent to return the truck directly to either the said garage or to defendant's place of business. To have done this he would have gone south on Main avenue a distance of twelve blocks, and would not have gone on Minnesota avenue at all. Decedent was allowed one hour, from 12 o'clock to 1 p. m. for his noonday meal. During this hour he was not under the control of the defendant, but could go where he wished and do as he saw fit. On this occasion, instead of returning with the truck directly to the garage, and then returning to his home for his noonday meal, he went with the truck directly to his home, a distance of two and one-half blocks, where he stopped and ate his lunch, and then, at about or probably a...