Tennis v. City of Sturgis, 9358

• Decision Date: 21 April 1953
• Docket Number: No. 9358,9358
• Parties: TENNIS v. CITY OF STURGIS et al.
• Court: South Dakota Supreme Court

Page 301

58 N.W.2d 301

75 S.D. 17

TENNIS v. CITY OF STURGIS et al.

No. 9358.

Supreme Court of South Dakota.

April 21, 1953.

E. V. Morrill, Sturgis, Tom Kirby, Jr., Sioux Falls, for appellants, City of Sturgis, South Dakota & Western Surety Co.

Helm & Bottum, and Richard Kerper, Sturgis, for claimant and respondent, Catherine Tennis.

Blaine Simons, Sioux Falls, for employer-respondent, Sturgis Volunteer Fire Department.

RUDOLPH, Judge.

Claimant is the widow of Ralph Tennis who died soon after returning home from a fire which occurred in the City of Sturgis. The Industrial Commissioner made an award under the Workmen's Compensation Law, SDC 64.0101 et seq. This award was affirmed by the circuit court. The insurance carrier has appealed.

The facts most favorable to the holding of the Commissioner are as follows: Ralph Tennis was 56 years of age. He and his wife operated a tourist court in Sturgis. On February 9, 1950, Tennis was asleep in his home at about 4:30 P.M. He was aroused from his sleep by his wife who was concerned because the fire whistle 'blew and blew'. The fire was in the county shops in Sturgis and was the worst fire the city had experienced in years. Tennis went to the fire and when he arrived members of the fire department were there stringing hose and fighting the fire.

The assistant fire chief, Mr. Grams, testified that the chief had directed him to take charge on the north side of the building. Mr. Grams further testified, 'When I first saw Mr. Tennis he had walked up to me and asked if there was anything he could do which was on the north side of the building. He was standing around with his hands in his pockets and Mr. Kelly and Mr. Bowman had ahold of the hose at the time and when he asked if he could help, I looked around and said, 'Sure. Go ahead and help with the hoe'.' Mr. Tennis did help with the hose which required 'unusual and extreme manual and muscular activity on his part.'

Although unaware of such fact, Mr. Tennis had for several years been afflicted with coronary sclerosis which made him susceptible to death from coronary thrombosis. Mr. Tennis was gone from his home about an hour. When he returned his clothes were wet, he was exhausted physically and suffering an acute pain in the region of his chest. A doctor was immediately summoned but Mr. Tennis died within an hour. The doctor testified and the Commissioner found that the immediate cause of his death was the physical exertion indulged while assisting at the fire.

These facts are sufficient for our present purpose, other facts will appear in the discussion.

Appellant contends that the record fails to disclose an employer-employee relationship existing between Mr. Tennis and the City of Sturgis, as determined by the Commissioner. Such relationship is necessary to impose liability under the Workmen's Compensation Law. Bergstresser v. City of Willow Lake, 63 S.D. 386, 259 N.W. 276; Schumacher v. Schumacher, 67 S.D. 46, 288 N.W. 796.

Respondent contends that within the meaning of the case of Gulbrandson v. Town of Midland, 72 S.D. 461, 36 N.W.2d 655, an employer-employee relationship did exist.

SDC 13.1612 provides:

'Every person * * * who at any fire at any place is guilty of any disobedience to the lawful orders of any public official or fireman attempting to control said fire, or who interferes with any such officer in any such case or refuses to assist in controlling said fire, * * * is guilty of a misdemeanor.'

Respondent reasons that under the provisions of this section of our code, and the holding in the Gulbrandson case any private citizen pressed into service at a fire by a fireman becomes an employee of the city occupying the status of a volunteer fireman, and becomes entitled to the same benefits under the Workmen's Compensation Act as any other volunteer fireman who has attained such status by formal action of the governing board of the municipality.

On this issue of the relationship between the parties we can see no distinction between the present facts and law and the facts and law in the Gulbrandson case. Under SDC 13.1612 a fireman has the same authority to call a private citizen into service, as does a sheriff or town marshal under the provisions of SDC 12.1001 and SDC 45.1112. On the issue of impressment into service the facts in this case, if anything, are a bit stronger in support of such issue than in the prior case. It is in the record that if the fire whistle sounds more...