Nagel v. South Dakota Employers' Protective Ass'n

South Dakota Supreme Court

Nagel v. South Dakota Employers' Protective Ass'n

228 N.W. 805, 56 S.D. 402, 1930 S.D. LEXIS 8

CourtSouth Dakota Supreme Court

DecidedJanuary 31, 1930

DocketFile No. 6862

StatusPublished

This text of 228 N.W. 805 (Nagel v. South Dakota Employers' Protective Ass'n) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nagel v. South Dakota Employers' Protective Ass'n, 228 N.W. 805, 56 S.D. 402, 1930 S.D. LEXIS 8 (S.D. 1930).

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Opinions

BROWN, P. J.

Plaintiff’s claim for compensation under the Workmen’s Compensation Law was allowed by the Industrial Com[403]*403missioner, and on appeal to the circuit court judgment was given allowing the claim, from which judgment and: an order denying a new trial defendant appeals.

Plaintiff is a farmer, and had taken workmen’s compensation insurance covering two of his workmen while engaged (a) in “ordinary farm labor” and (b) “in connection with farm machinery operated by the employer under contract, such as threshing, shredding, etc.” Attached to the policy was a rider, insuring plaintiff himself, under the provisions of Paws 1923, chapter 210, “while engaged in the work or business set forth in said policy, against accidental injury, including death resulting therefrom, to the same amount as is provided by the South Dakota 'Workmen’s Compensation Law to employees, and subject to the same restrictions and limitations.” While traveling about the country for the purpose of buying hogs, plaintiff went over a barb-wire fence to interview a man with reference to where he could find hogs for sale. In crossing the fence he pressed down the top wire, and on its release it struck his thumb, causing the injury complained of. There is no controversy as-to the fact .of injury or the amount of compensation awarded. The only question in dispute is whether or not the acts of the plaintiff which resulted in the injury were covered by the terms of the policy, and that depends on whether or not he was at the time of the injury “engaged in ordinary farm labor.”

We do not think that traveling about the country looking for live stock to buy can properly be said to 'be “ordinary farm labor.” The purchase of live stock involves the exercise of skill, judgment, and discretion that is not confided to the ordinary farm laborer. It is true that driving or hauling live stock to or from the farm where a laborer is engaged would be “ordinary farm labor,” and the person doing such work would be engaged in “ordinary farm labor”; but the farmer occupied in looking for stock to purchase is not in any proper sense engaged in “ordinary farm labor.” Plaintiff testified that when he went out and bought cattle and hogs he usually brought them home, and that had 'he procured any on the day he was injured he intended to take them home. But he also testified that some of the stock he bought he resold without'bringing them home and that he bought none at all on the day of the injury. We are of the opinion that so long as he was only looking for stock to buy, he was not engaged in “ordinary, farm labor.” [404]*404The evidence is insufficient to sustain the finding of the Industrial Commissioner and the findings and judgment of the trial court, and the judgment and order appealed from are reversed.

BOLEEY, SHERWOOD, and CAMFBELE, JJ., concur.

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BROWN, P. J.

Plaintiff’s claim for compensation under the Workmen’s Compensation Law was allowed by the Industrial Com[403]*403missioner, and on appeal to the circuit court judgment was given allowing the claim, from which judgment and: an order denying a new trial defendant appeals.

Plaintiff is a farmer, and had taken workmen’s compensation insurance covering two of his workmen while engaged (a) in “ordinary farm labor” and (b) “in connection with farm machinery operated by the employer under contract, such as threshing, shredding, etc.” Attached to the policy was a rider, insuring plaintiff himself, under the provisions of Paws 1923, chapter 210, “while engaged in the work or business set forth in said policy, against accidental injury, including death resulting therefrom, to the same amount as is provided by the South Dakota 'Workmen’s Compensation Law to employees, and subject to the same restrictions and limitations.” While traveling about the country for the purpose of buying hogs, plaintiff went over a barb-wire fence to interview a man with reference to where he could find hogs for sale. In crossing the fence he pressed down the top wire, and on its release it struck his thumb, causing the injury complained of. There is no controversy as-to the fact .of injury or the amount of compensation awarded. The only question in dispute is whether or not the acts of the plaintiff which resulted in the injury were covered by the terms of the policy, and that depends on whether or not he was at the time of the injury “engaged in ordinary farm labor.”

We do not think that traveling about the country looking for live stock to buy can properly be said to 'be “ordinary farm labor.” The purchase of live stock involves the exercise of skill, judgment, and discretion that is not confided to the ordinary farm laborer. It is true that driving or hauling live stock to or from the farm where a laborer is engaged would be “ordinary farm labor,” and the person doing such work would be engaged in “ordinary farm labor”; but the farmer occupied in looking for stock to purchase is not in any proper sense engaged in “ordinary farm labor.” Plaintiff testified that when he went out and bought cattle and hogs he usually brought them home, and that had 'he procured any on the day he was injured he intended to take them home. But he also testified that some of the stock he bought he resold without'bringing them home and that he bought none at all on the day of the injury. We are of the opinion that so long as he was only looking for stock to buy, he was not engaged in “ordinary, farm labor.” [404]*404The evidence is insufficient to sustain the finding of the Industrial Commissioner and the findings and judgment of the trial court, and the judgment and order appealed from are reversed.

BOLEEY, SHERWOOD, and CAMFBELE, JJ., concur.

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Bluebook (online)

228 N.W. 805, 56 S.D. 402, 1930 S.D. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nagel-v-south-dakota-employers-protective-assn-sd-1930.