[1] This is a proceeding brought under the Workmen's Compensation Act, SDC Title 64. The facts are undisputed and no conflicting inferences respecting the material ultimate facts can be drawn. The only question presented is the application of legal principles to such facts and such was the only question before the Circuit Court. It follows that the Circuit Court did not err in entering a judgment for the claimant if it correctly applied the legal principles to the undisputed facts. Lang v. Jordan Stone Co. et al.,
The facts disclose that on the morning of February 3, 1943, and for some years prior thereto, the claimant, Andrew J. Lang, was superintendent of the defendant school district, the boundaries of which are coextensive with the boundaries of the city of Huron. As such superintendent, the claimant had general supervision of the high school and four grade schools of the district, was the executive of the Board of Education, and supervised the schools and school property. He had no fixed hours of work but worked simply as the occasion demanded and often performed duties in connection with his work at his home which was located six blocks from *345 the high school building. The morning of February 3d was stormy, a light rain was falling, the wind was blowing and the sidewalks and streets were covered with a coating of ice. Rather early in the morning and while claimant was still at his home, two telephone calls came to him inquiring whether there would be school on that day. A part of claimant's duties was to observe the weather conditions and from such observation determine whether school should be called off or maintained during the day. At 7:30 in the morning and while claimant was still at the home, he opened the door and looked out to observe the condition of the weather and sidewalks and then determined that unless the storm and conditions got worse that school would be maintained. At 8:30 in the morning claimant left his home and started for the high school building where he maintained an office and generally observed office hours from 9 until 10:30 in the morning and from 1 until 5 in the afternoon. As he was proceeding toward the high school building he fell and sustained the injury for which he is now seeking compensation. After falling, he immediately returned to his home and at 10 o'clock called off school for the afternoon.
The Industrial Commissioner, upon these undisputed facts, concluded that the injury was not one "arising out of and in the course of the employment" of claimant. The Circuit Court concluded that the injury did arise out of and in the course of the employment and entered judgment awarding compensation. The defendant has appealed.
[2] The South Dakota holding upon which appellant relies is found in the case of Driessen v. Schiefelbein et al.,
Decisions from other states are not of much help. The fact situations, of course, are not the same as here presented, and many of the decisions seem to conflict when considered in the light of controlling legal principles. Decisions from Ohio indicate the apparent confusion. In the case of Inglish v. Industrial Commission of Ohio,
[3] The difficulty presented is not due to a conflict of legal principles but rather to the application of established law. Our statute SDC 64.0102(4) provides that to be compensable the injury must be an "injury by accident arising out of and in the course of the employment." Under statutes of similar import, and implicit in our South Dakota holdings it is well settled that an injury to arise out of and in the course of employment must be sustained while the employee is engaged in performing the duties of his employment, or something incidental thereto. Wilson v. Dakota Light Power Co.,
[4] We believe that the instant facts disclose that claimant at the time of the injury was engaged in duties, in any event, incidental to his employment. He was not simply on his way to work, his sphere of work was the entire district. Nor did the injury occur before claimant's regular tour of duty; he had no fixed hours of work, his duties were such that they were performed where and when the occasion demanded at any hour of the day. True, he was going from his home to his office, but under the facts of record such trip was not entirely personal to claimant. He had prior thereto been engaged in the discharge of his employer's duties at his house, and the trip, as we view it, was continuing in this discharge of duty. It would be clear, we believe, that had he reached the high school building in safety, stopped there momentarily and continued on to one of the grade school buildings and suffered an accident after leaving the high school that such accident would have been in the discharge of his duties. While perhaps not so clear, in view of the holdings that an injury suffered going to or coming from a place of work is not compensable, nevertheless, we believe, *348 under the facts here presented that claimant was in the discharge of his employer's duties at the time in question to the same extent as he would have been under the assumed state of facts. He was not simply getting to his work, he was actually at his work, not only as to time and place, but in an act essential to continuing the work which had been started at his home.
The judgment appealed from is affirmed.
SMITH, P.J., and POLLEY, J., concur.
ROBERTS and SICKEL, JJ., dissent.