Wilson v. Dakota Light & Power Co.

BOLLEY, 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 deáth 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.

[i] 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, 3] Such has already been declared to be the rule of 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 decadent’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 elcetric 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 the support out from under one side of the wall. The result was that the wall fell over, and decedent being unable to get out of its way, the wall fell on him, causing his death.

It is contended by appellant that in his attempt to help in tearing the wall down he was working in his employer’s interest, and that therefore such work should be held to be in the course of his employment within the meaning of the law. It is also contended that it was the custom of decedent to do occasional small jobs not strictly in line with his regular employment, and that defendant knew of such practice; but there is no evidence to show that defendant had any such knowledge, and defendant’s superintendent testified positively that he had no such knowledge. The.work decedent was attempting to do when injured was in no wise connected with or incidental to the performance of his duties. There was no emergency that called for his assistance. There was no more justification for his attempt to assist in tearing down the wall than there would have been for one of the bricklayers to have gone into the engine room and undertaken to operate the engines or dynamos. Had a bricklayer, believing he could further his employer’s business by helping to operate a dynamo, made the attempt, and been electrocuted, he nor his dependents would hardly be in a position to claim that the accident arose out of or in the course of his employment. Yet the bricklayer would have been no more out of place in the engine room than the decedent in this case was in attempting to tear down the wall. The rule that appears to be generally adopted by the courts is that a workman cannot recover under the Workmen’s Compensation Law unless the injury was received while he was acting within the scope of his employment, and unless there was a “causal connection between the conditions surrounding the performance of his work and the resulting injury.” Mann v. Knitting Co., 90 Conn. 116, 96 Atl. 368, L. R. A. 1916D, 86. The accident must result from a risk reasonably incident to the employment. The duties of the decedent as chief engineer of the defendant did not expose him to the danger of the falling wall. Haas v. Light & Power Co., 109 Kan. 197, 198 Pac. 174, and cases cited. The evidence fully supports the finding by the trial court that the accident that caused decedent’s death did not arise out of nor in the course of his employment.

The judgment and order appealed from are affirmed.