C. A. Wilhelm instituted proceedings under the Workmen’s Compensation Raw, Rev Code 1919, § 9436 et *157 seq., as amended, against the Nаrregang-Hart Company as employer and the Commercial Casualty Company, insurer, alleging in substance thаt on December 14, 1933, while in the employment of Narregang-Hart Company, he fell and severely injured his back аnd that the injury resulted in his total disability for which recovery was sought. The matter came on for hearing before the industrial commissioner sitting in lieu of a 'board of arbitration and, after hearing, decision against the allowanсe of compensation was rendered. Claimant appealed from the adverse decision tо the circuit court of Brown county. The circuit court made findings of fact and conclusions of law favorable to the plaintiff. From the judgment of the circuit court, defendants have appealed to this court.
Thе circuit court is not the trier of facts (Wieber v. England, 52 S. D. 72,
The industrial commissioner found that “claimant was not an emplоyee of the Company but was an employee of the Northwestern Company and the Boyd Brothers, pеrforming janitor services for these two firms.” The NarregangHart Company collected rentals and had genеral charge of the Bolles block owned by the Northwestern Company and of the Boyd building owned by the firm of that name. Claimant does not deny the existence of the agency, but contends that the Narregang-Hart Company having failed to disclose its principals is, nevertheless, liable as an employer. If it be conceded that an agent who in making a contract of hiring fails to disclose his principal is liable as an employer for compensation, we believe that under the undisputed facts in this record claimant elected nоt to hold the Narregang-Hart'Company. On July 3, 1934, after medical and hospital services had been rendered, сlaimant entered into an agreement with the Northwestern Company and its insurer acknowledging payment of $500 аnd releasing the company from any and all claims and demands for injury sustained by claimant on or about December 14, 1933, “while in the employment of the Northwestern
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Company.” True, claimant contends that he signed the agrеement under the misapprehension that it was a settlement for medical and hospital expenses, but does not claim that he did not have knowledge of the true status of the party with whom he dealt. We are of thе opinion that the agreement entered into after discovery of the agency and opportunity tо make a deliberate choice constituted an election not to enforce a claim undеr the Workmen’s Compensation Law against the Narregang-Hart Company. 71 C. J. 397: Scott v. O. A. Hankinson & Co.,
The industrial commissionеr found that claimant failed to give notice of his alleged injury as required by section 9455, Rev. Code 1919. 'Claimant contends that the Narregang-Hart Company had such knowledge of the injury as to' dispense with formal notice. The burdеn was on claimant to prove by a preponderance of the evidence all material fаcts necessary to make out a prima facie case for recovery, and findings adverse to suсh party cannot ibe disturbed on appeal, unless the record shows that he has so clearly establishеd a case that it was unreasonable 10 find otherwise. Edge v. City of Pierre, 59 S. D. 193,
It is further contended that the requirement of notice 'was waived; that payment of compensation under the contract of settlement constituted such a waiver. Narregang-Hart Compаny was not a party to the contract and no waiver under the admitted facts arose.
For reasons given, the judgment appealed from is reversed and the cause remanded with directions to dismiss the proceedings.