187 N.W. 632 | S.D. | 1922
Action for damages for personal injuries sustained by plaintiff, an employe of defendant, in defendant’s grain elevator. On the trial the court sustained defendant’s objection to the introduction of any evidence- upon the ground that the complaint did not state a cause of action, and directed the jury to return a verdict for defendant. From a judgment dismissing the action plaintiff appeals.
In the first instance we may observe that the apparently conflicting provisions of the act render the solution of the problem difficult. Respondent contends that all employers subject to the act are presumed to have accepted the provisions of the act; that the only method open to an employer who is subject to the act to exempt himself from it is by giving the notice mentioned in section 9438; that section 9440 provides that the rights and remedies given to the employe are exclusive; that by the provisions of section 9482 the liability of an employer who does not carry insurance is the liability arising under sections 9436 to- 9454, inclusive, of which section 9440 is, of course, a part. But respondent is candid enough to admit that the result of his reasoning imposes upon the employer who has not furnished insurance the same liability as if he had insurance. If this theory is right a premium is placed upon neglect to carry insurance because the employer would have all of the benefits of the act without incurring the expense of insurance.
Appellant contends that the failure to carry insurance by the employer is an election not to operate under the act, and that in such case the employer is subject to an action at law in which the amount of his recovery is not limited by the act,. and in which if the employe is under the act, the employer may not defend upon the ground of contributory negligence, negligence of a fellow servant, nor assumption of risk.
“Every employer coming within the compensation provisions of this article shall insure the payment of compensation to his employes in the manner herinafter .provided, and while such insurance remains in force he, or those conducting his business, shall only he liable to any employe for personal injury or death by accident to the extent and in the manner hereinafter specified
The clear intent of this section is to restrict the amount of the employer’s liability to the amounts specified in the ocmpensation schedules of the act only when the employer has insurance. There is no provision in the act by which the Industrial Commissioner can allow an employe a sum greater than the schedule. It is only by an action at law that a sum greater than the schedule can be obtained. Therefore it would seem evident • that if the employer fails to insure his liability to his employe he is subject to an action at 'law. But respondent chiefly relies upon section 9482, which is as follows:
“Every employer subject to the privisions of this article shall insure his liability thereunder in some corporation, association or organization approved by the Commissioner of Insurance of this state and, upon demand of the Commissioner of Insurance or the Industrial Commissioner, produce evidence of his compliance with this section. Any employer who refuses or neglects to comply*362 with this section shall be liable, under sections 9436 to 9454, inclusive, in case of injury to any workman in his employ.”
It is not necessary now to decide what other of sections 9436-9454 are applicable in such case. Perhaps it was the legislative intent that' sections 9448, 9449, and 9450 should apply. We are satisfied that sections 9439 and 9444 do apply, and that section 9440 does not. We are therefore of the opinion that this plaintiff who was operating under the act at the time of his injury has the right to maintain an action at law against this defendant under the provisions of section 9444, Rev. Code 1919, in which
We think our conclusion is in harmony with the purposes' of the act as a whole, especially in conformity with sections 9439 and 9482, which require the employer to carry insurance. It is unthinkable that the Legislature intended to put a premium upon neglect to provide insurance.
The judgment appealed from is reversed.