Wieber v. England
| Decision Date | 21 September 1931 |
| Docket Number | 7069. |
| Citation | 238 N.W. 25,59 S.D. 1 |
| Parties | WIEBER v. ENGLAND et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lyman County; John G. Bartine, Judge.
Proceeding under the Workmen's Compensation Law by C. H. Wieber claimant, for injuries, opposed by R. P. England and the Georgia Casualty Company. From judgment of circuit court reversing an award of the Industrial Commission in favor of defendants, defendants appeal.
Reversed with directions to dismiss complaint.
Theodore R. Johnson, of Sioux Falls, for appellants.
M. Q Sharpe and L. Bridgman, both of Kennebec, for respondent.
Claimant Charles H. Wieber, filed a claim for compensation against R. P. England and Georgia Casualty Company. He alleged that he sustained and suffered an injury to his left eye, that arose out of, and in the course of, his employment. The particular date of the injury will receive our attention later; however, it took place either on the 13th or 14th of June, 1923.
Workmen's compensation insurance was carried by England in the Georgia Casualty Company. Both defendants resisted the claim and a board of arbitration was appointed to try the issues. The first board decided in favor of claimant, and on review the Industrial Commissioner affirmed the order of the board. The case was appealed to the circuit court, who affirmed the prior proceedings. An appeal was taken from the circuit court to the Supreme Court, and on the 13th of December, 1927, the judgment of the lower court was reversed and the award was vacated and set aside without prejudice, and remanded for further hearing before the Industrial Commissioner to ascertain the rights of the parties. For a full statement of facts, see Wieber v. England et al., 52 S.D. 72, 216 N.W. 850, 854.
The first board of arbitration, with one of its members dissenting, awarded compensation. When this matter was before the Supreme Court, this court said: "The sole question of fact is, Did respondent receive the injury on the 13th while hauling sand for Traphaggen, or did he receive it on the morning of the 14th while working for England?" That seems to be the vital question that we are now to determine.
The hearing, after the decision of this court, was held before the Industrial Commissioner, in lieu of a board of arbitration. The commissioner found on the only disputed question of fact that claimant's alleged injury was sustained while working for W. H. Traphaggen on June 13, 1923, and that the alleged injury did not occur on June 14, 1923, while he was working for O. C. Cleland, as subcontractor. We have carefully reviewed the evidence submitted before the Industrial Commissioner, and while claimant's evidence in places is quite positive, yet his evidence is squarely contradicted by a number of witnesses who testified that the claimant complained on the 14th of June, of "having got something in his eye, while working in the gravel pit on the day before, June 13, 1923, and that the claimant wanted one of the witnesses to look at it and see if he could see anything and get it out, and that the claimant told him that his eye troubled him the night before." There is also the testimony that claimant worked for Traphaggen on June 13, 1923.
It is not necessary to dwell at any great length as to the weight that is to be given to the evidence in this case, nor to the nature of the injury. There is nothing in the medical testimony which could assist in arriving at just how the injury was received, whether by gravel in his eye or that something flew into his eye while he was at work, swinging a pick and splitting rock. The Industrial Commissioner heard the evidence, and saw the witnesses. After hearing the testimony and listening to the arguments of counsel, he chose to believe the witnesses that related and testified that the injury took place on June 13, 1923. In this, we believe the evidence was ample and preponderates in favor of the defendants. He made his findings of fact and thereupon his conclusions of law and his order denying the award. Thereafter he made his order affirming his decision. Thereafter there was an appeal to the circuit court. The circuit court considered the matter in May, 1929. The record of the testimony introduced before the Industrial Commissioner was read and the trial court entered a decision in favor of said claimant, reversing said Industrial Commissioner and granting a new trial upon the issue notwithstanding the verdict of the board of arbitration and the subsequent decision of the Industrial Commissioner. The evidence before the learned trial court was the same as that before the Industrial Commissioner. It therefore seems to be a case where two minds receive different impressions and, from said impressions so made upon their minds, arrive at a different conclusion. That situation being now before us, we will inquire into the purpose of the Industrial Commissioner and the circuit court and the duties of each. This court, in its first decision, clearly expounded the law relating to the trials before the Industrial Commissioner and the duties of the board of arbitration, and what was said by the court in that decision is again reiterated as being the law in this case.
The undisputed facts appearing in the records of the first appeal will be taken as true in the second appeal, and in this case the evidence now preponderates more strongly in favor of the defendants than when it was before this court for the first time. In Wright v. Lee et al., 10 S.D. 263, 265, 72 N.W. 895, 896, this court said: ...
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