Wulff v. Swanson
| Decision Date | 14 January 1944 |
| Docket Number | 8667. |
| Citation | 12 N.W.2d 553,69 S.D. 539 |
| Parties | WULFF v. SWANSON et al. |
| Court | South Dakota Supreme Court |
Rehearing Denied Feb. 23, 1944.
Caldwell & Burns, of Sioux Falls, for appellants.
R F. Williamson, of Aberdeen, for respondent.
Everett Wulff, a single man, was employed by Gus Swanson in operating a combine. He suffered an accident causing mortal injuries from which he died.
The deceased had no children or other dependents, except his mother, the claimant herein. Claimant, at the time of Everett's death, was living with him, temporarily, under an existing arrangement whereby she was to live in turn with her several children upon all of whom she was dependent for support. Since Everett's death she has lived in turn with her three living children and has turned the compensation checks over to the child with whom she in turn stayed. Claimant at the time of the hearing was sixty-three years old. According to the American Experience Tables of Mortality her life expectancy was 12.26 years. She was in poor health and required constant medical attention. She suffered from high blood pressure, a nervous condition, was under the care of physicians and to some extent had been taking medicine. There is testimony to the effect that she had suffered two light strokes; her blood pressure was high, and that she did not have a very strong heart. There was no medical testimony as to the condition of the claimant.
The record discloses a written agreement whereby defendants agreed to pay the claimant the sum of $1650 under the workmen's compensation law, in installments of $16.50 per month. The agreement was approved by the industrial commissioner. Defendants have continued to make the payments in accordance with said agreement.
Claimant, on April 10, 1942, filed a petition with the industrial commissioner for a lump-sum settlement. Defendants filed written objections. At the conclusion of the hearing, the commissioner entered findings of fact and conclusions of law granting the petitioner a lump-sum award in the commuted amount of $1315. Defendants appealed to the circuit court of Marshall County. A judgment by the circuit court affirming the lump-sum award was made and filed on March 12, 1943. This is an appeal from the judgment.
Appellants at the outset in their brief urge error to the industrial commissioner's making conclusion of law No. II, insisting that the commissioner abused his discretion in ordering a lump-sum settlement because there is no evidence from which the sum of the probable future payments could be determined. Under SDC 64.0510 the burden of proof is undoubtedly upon the claimant to establish the proper facts from which the commissioner can determine the total sum of the probable future payments. The record does not contain evidence from which the commissioner could have determined, with any degree of accuracy, the amount of the probable future payments. We may safely say that the record is quite silent as to evidence from which the commissioner could base the amount fixed as the proper lump sum to be paid as compensation. Skaggs v Industrial Commission et al., 371 Ill. 535, 21 N.E.2d 731; H W. Clark Co. v. Industrial Commission et al., 291 Ill. 561 126 N.E. 579. In this connection, the respondent, in maintaining her position for recovery, is confronted with SDC 64.0510 which provides that before a lump-sum settlement can be ordered, it must appear "to the best interests of the parties that such compensation be so paid." This burden has not been met by the evidence. The record discloses the fact that her physical condition and health may not permit her to live the length of time or expectancy as disclosed by the mortality tables.
Our workmen's compensation statutes, it will be observed, are quite similar to the Illinois statutes. An examination of the Illinois decisions discloses that the interpretation of the language of the statute we have just quoted cannot apply to only one of the parties, but must apply to both parties. Section 9 of the Illinois statute, Smith-Hurd Stats. c. 48, § 146, from which our § 25, Ch. 376, Session Laws 1917, Workmen's Compensation Law, now SDC 64.0510, was drafted is set forth and construed in Goetlitz Co. v. Industrial Board of Illinois et al., 1917, 278 Ill. 164, 115 N.E. 855, in which the Illinois court held that there must be evidence to show that it is for the best interests of the applicant and that the payment in a lump sum will not result injuriously to the other party. The court quoted from Harper's Workmen's Compensation Act 5 showing that it might become necessary for the employer to terminate all his obligations to his injured workman and others; and, in that event, a lump-sum settlement would be desirable to both parties. See also Forschner & Co. v. Industrial Board of Illinois, 278 Ill. 99, 115 N.E. 912, and H. W. Clark Co. v. Industrial Commission et al., 291 Ill. 561, 126 N.E. 579.
In a later case, Illinois Zinc Co. v. Industrial Commission et al., 366 Ill. 480, 9 N.E.2d 212, 213, the Illinois Supreme Court has followed its earlier decisions and has also elaborated on the construction of its statute in a case in which the factual matters are quite similar to the ones in the instant case and we quote: ...
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