Wilhelm v. Narregang-Hart Co.

Decision Date06 May 1938
Docket NumberNo. 8118.,8118.
Citation279 N.W. 549,66 S.D. 155
CourtSouth Dakota Supreme Court


Appeal from Cricuit Court, Brown County; Howard Babcock, Judge.

Proceeding under the Workmen's Compensation Law by C. A. Wilhelm, claimant, opposed by the Narregang-Hart Company, employer, and the Commercial Casualty Company, insurer. From a judgment of the circuit court for claimant, on claimant's appeal from adverse decision of the Industrial Commission, the employer and insurer appeal.

Reversed and remanded with directions to dismiss the proceedings.

Williamson & Williamson, of Aberdeen, for appellants.

J. J. Fitzpatrick, of Aberdeen, for respondent.

ROBERTS, Presiding Judge.

C. A. Wilhelm instituted proceedings under the Workmen's Compensation Law, Rev.Code 1919, § 9436 et seq., as amended, against the Narregang-Hart Company as employer and the Commercial Casualty Company, insurer, alleging in substance that on December 14, 1933, while in the employment of Narregang-Hart Company, he fell and severely injured his back and that the injury resulted in his total disability for which recovery was sought. The matter came on for hearing before the industrial commissioner sitting in lieu of a board of arbitration and, after hearing, decision against the allowance of compensation was rendered. Claimant appealed from the adverse decision to the circuit court of Brown county. The circuit court made findings of fact and conclusions of law favorable to the plaintiff. From the judgment of the circuit court, defendants have appealed to this court.

[1] The circuit court is not the trier of facts (Wieber v. England, 52 S.D. 72, 216 N.W. 850;Haddorf v. Jerauld County, 63 S.D. 448, 260 N.W. 404;Montange v. Wagner Const. Co., S.D., 278 N.W. 176), and the only question presented for review before the circuit court and before this court is whether or not the findings of fact by the industrial commissioner are supported by sufficient competent evidence.

[2] The industrial commissioner found that claimant was not an employee of the Narregang-Hart Company but was an employee of the Northwestern Company and the Boyd Brothers, performing janitor services for these two firms.” The Narregang-Hart Company collected rentals and had general charge of the Bolles block owned by the Northwestern Company and of the Boyd building owned by the firm of that name. Claimant does not deny the existence of the agency, but contends that the Narregang-Hart Company having failed to disclose its principals is, nevertheless, liable as an employer. If it be conceded that an agent who in making a contract of hiring fails to disclose his principal is liable as an employer for compensation, we believe that under the undisputed facts in this record claimant elected not to hold the Narregang-Hart Company. On July 3, 1934, after medical and hospital services had been rendered, claimant entered into an agreement with the Northwestern Company and its insurer acknowledging payment of $500 and releasing the company from any and all claims and demands for injury sustained by claimant on or about December 14, 1933, “while in the employment of the Northwestern Company.” True, claimant contends that he signed the agreement under the misapprehension that it was a settlement for medical and hospital expenses, but does not claim that he did not have knowledge of the true status of the party with whom he dealt. We are of the opinion that the agreement entered into after discovery of the agency and opportunity to make a deliberate choice constituted an election not to enforce a claim under the Workmen's Compensation Law against the Narregang-Hart Company. 71 C.J. 397; Scott v. O. A. Hankinson & Co., 205 Mich. 353, 171 N.W. 489.

[3][4][5][6][7] The industrial...

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