Wilcox v. John Morrell & Co., 8624

• Decision Date: 03 December 1943
• Docket Number: 8624
• Citation: 12 N.W.2d 15,69 S.D. 488
• Parties: TED WILCOX, Respondent, v. JOHN MORRELL & CO., Appellant.
• Court: South Dakota Supreme Court

69 SD 488, 12 NW2d 15 (1943)

TED WILCOX, Respondent v JOHN MORRELL & CO., Appellant South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. John T. Medin, Judge #8624—Reversed John S. Murphy, Boyce, Warren & Fairbank, Sioux Falls, SD Attorney for Appellant Claude A. Hamilton, James R. Smith, Sioux Falls, SD Attorneys for Respondent Opinion filed Dec 3, 1943

SMITH, J.

Our Workmen’s Compensation Act includes the following provision:

“The right to compensation under this title shall be forever barred unless within one year after the injury, or if death results therefrom, within one year after such death, a claim for compensation thereunder shall be filed with the Industrial Commissioner.”

SDC 64.0611.

It also contains the following subsection:

“If, after the injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in the cases covered by the specific schedule set forth in subdivision (4) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in subdivisions (1) and (7) of this section, equal to one-half of the difference between the average amount which he earned before the accident, and the average amount which he is earning or is able to earn in some suitable employment or business after the accident. Return by the employee to the employment of the employer in whose service he was injured shall not bar his claim for compensation under this subdivision, if notice of such claim is filed with the Commissioner within eighteen months after such return to such employment. The Commissioner shall immediately send to the employer by registered mail a copy of such notice;”

SDC 64.0403(3).

The question presented for decision by this appeal is whether plaintiff’s claim for compensation is barred by the above-quoted one-year statute of limitations.

On January 30, 1939, while working in the regular course of his employment, claimant was struck in the right eye by a stream of liquid erupted from a container in which he and other employees were pressing hams. The claim for compensation asserts that the above-described accident caused a detachment of the retina and destroyed the vision of that eye. The claimant lost no time from his employment by reason of the alleged accidental injury. At the time of the accident he stepped back from the group with which he was working and informed his foreman that some of the pickle solution had entered his eye. He was then suffering apparent discomfort. Thereupon he immediately resumed work. At the end of his working day he went to the first aid station maintained by the employer, informed the nurse there in attendance that he had “gotten pickle in his eye”, and asked for the names of eye specialists he might consult. The nurse recommended any one of three practitioners. Claimant thereupon consulted one of these practitioners in off work time and was informed that he had a detached retina of the right eye, and that the vision of that eye had been reduced to one-fifth of normal. Thereafter the eye became sightless.

Claimant failed to file a claim for compensation with the industrial commissioner until the 28th day of July 1941. After hearing the commissioner concluded that the claim was barred by SDC 64.0611, supra. The claimant appealed to the circuit court. The learned trial court concluded that the claim was governed by SDC 64.0403(3) supra. Although the commissioner had limited his decision to the indicated issue of law, the court proceeded to make findings of fact upon conflicting testimony, draw conclusions of law therefrom and enter judgment setting aside the order of the commissioner and awarding compensation to the claimant. See Lang v. Jordan Stone Co., 61 SD 330, 249 NW 314. From that judgment the employer has appealed.

The issue throughout these proceedings has been whether the words “return by the employee to the employment of the employer” contained in SDC 64.0403(3) were intended to benefit a claimant who lost no time from his employment as a result of his injury. The employer contends that the claimant did not leave his employment and therefore did not return to that employment. The commissioner adopted this view and held the claim to have been barred by SDC 64.0611, supra. The claimant, on the other hand, contends that such a literal construction of a statute is unwarranted in a field where a policy of broad liberal construction obtains. It is said that it would be unreasonable to conclude that the Legislature intended to deal less liberally with those who are able to carry on with their employment without an interruption, than with those whose injury occasions a period of total incapacity. The claimant further contends that if a literal construction be adopted it must be held that he did “return to the employment.” The argument here is that he left his employment when he reported his injury to the foreman and returned thereto when he resumed...