Wilson v. Dakota Light & Power Co.

• Decision Date: 08 February 1922
• Docket Number: No. 4964.,4964.
• Citation: 186 N.W. 828,45 S.D. 175
• Parties: WILSON v. DAKOTA LIGHT & POWER CO.
• Court: South Dakota Supreme Court

45 S.D. 175

186 N.W. 828

WILSON

v.DAKOTA LIGHT & POWER CO.^*

No. 4964.

Supreme Court of South Dakota.

Feb. 8, 1922.

Appeal from Circuit Court, Moody County; L. L. Fleeger, Judge.

Proceedings under the Workmen's Compensation Law by Arthur A. Wilson for compensation for the death of his son, Herbert L. Wilson, opposed by the Dakota Light & Power Company, employer. Compensation was awarded by the board of arbitration and Industrial Commissioner, but denied by the circuit court, and the petitioner appeals from the judgment and the order denying a new trial. Affirmed.

Smith, J., dissenting.Frederick A. Warren, of Flandreau, and Robert J. Gamble and Bates, Johnson & Simons, all of Sioux Falls, for appellant.

Rice & Rice, of Flandreau, for respondent.

POLLEY, J.

Appellant filed a claim against the respondent for compensation under the terms of the Workmen's Compensation Law (Rev. Code 1919, §§ 9436-9491), for the death of his son, Herbert L. Wilson, who was killed while in the employ of the respondent on the 29th day of July, 1918. The defendant resisted the claim, and a board of arbitration was appointed under the terms of the law. Testimony was taken, and the board found that the decedent's death was caused by an accident which “arose out of and in the course of his employment.” An award was made accordingly. Upon demand made by the respondent the case was reviewed by the Industrial Commissioner, who affirmed the findings and award of the board of arbitration. From this award the defendant appealed to the circuit court of Moody county. The case was tried by the court without a jury upon the evidence taken before the board of arbitration. The trial court found that the decedent's duties, under the terms of his employment, were to keep the engines and producers in proper condition and to attend to everything pertaining to the running of the machinery inside the plant, and that he was not employed or authorized to do any other work or discharge any other duty; that the accident which caused decedent's death did not arise out of and was not in the course of his employment and was not incidental thereto; that in doing the work he was engaged in at the time of the accident he was a mere volunteer and doing work not in the course of his employment. Conclusions of law and judgment were entered accordingly, and from such judgment and an order denying his motion for a new trial plaintiff appeals.

[1] Appellant's first proposition is stated as follows:

“Where there is any reasonable or substantial evidence tending to establish the findings of such board and the Commissioner, such findings are not subject to review.”

[2] Such has already been declared to be the rule by this court. Day v. Sioux Falls Fruit Co., 43 S. D. 65, 177 N. W. 816;Shaw v. Harms, 184 N. W. 204, and cases cited. But neither the board of arbitration nor the Industrial Commissioner made any finding as to what decedent's employment was, or from which any inference as to whether the accident arose out of or in the course of his employment might be drawn. The facts relative to what were decedent's duties, as found by the trial court, are fully sustained by the evidence. In support of the finding by the trial court that in doing the work he was doing at the time of the accident the decedent was a mere volunteer, the evidence shows that the defendant is a corporation engaged in the production and sale of electric light and power and selling electrical supplies. At, and for some time prior to, the time of the accident, decedent was employed by defendant as its chief engineer. During the summer of 1918 defendant enlarged the building which inclosed its power plant and office. Such enlargement required the removal of one of the old walls adjoining the engine room. This wall was composed of hollow tile and cement. A bricklayer and plasterer were engaged to tear down and remove it. These parties were taking the wall down from the top. Decedent, thinking to expedite the work, took a “pinch bar” and proceeded to dig...