*1 injustice resulting is insubstantial. ing situation case to remand this Accordingly, conviction affirm the we resentenced, petitioner that directions circuit court with given new petitioner on such sentence to be with credit July 1966. spent from and after confinement time WINANS, JJ„ HANSON, J., concur. and BIEGELMEIERand P. DOYLE, J., participating. HASVOLD, ux, Respondent Appellants v.
WILSON et (194 251) N.W.2d (File February 7, 1972) Opinion Nos. 10957. filed *2 Barnett, Schütz, Murray Ogborn, Siegel, Og- O'Keefe & born, plaintiffs-appellants. Aberdeen for Evans, Smith, Hoy, Davenport, Carleton R. Hurwitz & Sioux Falls, defendant-respondent. HANSON, Presiding Judge. wife,
Harold Wilson, K. Wilson Ruby and his instituted separate damages alleged common-law actions for to have been negligence defendant, caused Marvin C. Hasvold. De- judgment summary granted fendant's motions for were plaintiffs appeal. trial court and
Both actions arise August out of an industrial accident on plaintiff, Wilson, 1968 while Harold K. in employment course of his superintendent as construction for the Turner Company. Construction The accident occurred near Ord- way, Dakota, South where the Company Turner pro- was in the constructing bridge. cess highway large A operated crane being pilings. metal utilized to remove another plaintiff. collapsed As a result and struck crane on the
The boom injuries work- plaintiff allowable maximum received men's Hasvold, defendant, also on the time of the accident At being job used caterpillar operating which tractor site the Turner the crane. Hasvold is anchor stabilize Company percent of its stock. owns 80
Construction allege actions, em- complaints, defendant was Company plaintiffs' ployee of Turner Construction damages proximately caused defendant's were *3 directing heavy equipment operating piece in of and a in operation of the crane. rights by pro- an and remedies of covered
The by Compensation Act are restricted of our Workmen's visions 62-3-2 as follows: SDCL rights granted to an em- and remedies herein
"The title, injury personal ployee to this on account of arising out of in the course of or death accident and rights employment, shall and exclude all other remedies employee, representatives, depend- of such kin, ents, injury or next of on account such or death." right exclusivity exception to the is a action a- One the act gainst provided persons third as 62-4-38: SDCL compensation an
"Whenever which is payable this under title shall have been sustained under creating person circumstances in some other than legal damages employer liability pay respect a thereto, employee may option at his either compensation proceed claim or at law such damages proceed other to recover or person, both the but such other he shall not collect from both." not defendant presented question is whether
The narrow controlling Turner Hasvold, of the stockholder as employer" person Company, is "some other Construction subject plaintiffs' actions common-law fact, Company Turner Construction immunity statutory from common-law but defendant contends the corporation. protects him as as the actions well disregards the Turner the fact contention Defendant's legal separate corporation, Company, a en is Construction as pierced tity. and defendant have to be veil would ego regarded corporation. as alter of the would have Comp contrary express provisions This to the of our Workmen's is "employee" by pro him ensation Act as SDCL 62-1-7makes viding "Every duly appointed elected officer of a executive charitable, religious, educational, corporation, other than a nonprofit corporation, corpora shall be an provision prevents under tion this title." This officer wearing cannot, option, two hats at the same time. He at his gain ego "employer" corp be an alter "employee" purpose oration at the same time be an for the receiving workmen's jurisdictions persons In some the class of immune from employees third actions has been broadened *4 example, they For statute. include "the and his em ployees" doing business", or "the and those his or "to person However, employ". a in the same our statute confers im munity upon employer only. employee may An there negligence against fore maintain a common-law action for fellow-employee may in this corporate state who also be a officer. This Stewart, was the conclusion reached in Webster v. 210 13, 230, brought Mich. 177 N.W. in which an a common- president law action ing the vice employ and director of the corporation allegedly for negli caused defendant's gence engaged while both were company in business. In con struing Michigan statutes identical to ours the Court said "The of our person words statute 'some other employer' should given plain be their meaning. and usual corporation 290 employ'e, plaintiff, the defendant employer. to the Comprehensive employer." see person Also than his a Against "Right Fellow Direct Action on To Maintain
Annotation Compensa- Injury Workmen's Employee For or Death Covered 21 A.L.R.3d 845. tion" general in Larson's on this is summarized rule Law, Compensation p. 179 as follows:
Workmen's § corporate question officer should "The whether a ego partake corporation alter treated as the out, surprisingly, have a to of its turns quite cases here in the in which different answer than corporation attempting deny identity between is deny corporate liability corporation in officer and order to In the set- for assault committed the officer. ting, consistently that a modem cases hold stockholder, officer, director, all three is a merely co-employee, purposes can still be treated as a being damage suit." held accountable in a Oliver, case Ark. S.W.2d In the of Neal v. defendant, brought a tort action cited general president, man- the defendant Oliver who was ager, family corporation. principal stockholder owned of a alleged negligent assigning "in her Plaintiff failing provide on an unsafe machine and in the machine work protective plead- particular a device". facts and Under ings party" court concluded Oliver not a "third amen- able action for But it be assumed proper Arkansas Court a would a case consider fellow-employee responsible to be a officer his own causing injuries. contributing employee's to another following pertinent portions opinion: reflected This is in the of its [*] [*] # manager *5 may may fellow-employee or a business or not be a employed corporation who others are the same business, may person- not be he and in the same causing fellow-employee, injury ally his tort liable for states and depending the tort in some the nature of on * * * authority scope his duties and others. the case, we have found appellant no and has cited The none, family corpora- the of a where owner and hires, employees and fires directs his who tion provided compensation insurance has them workmen's coverage, personally has been liable in tort for held injuries by negligently equipment sustained maintained comp- under a workmen's unsafe conditions compensation ensation statute similar to our own. Under coverage gives employer up the defense of contribu- negligence injured tory and the is relieved of negligence gives proving up the burden of but he * * * right to sue his court of law. appellant negligent was not a direct act Oliver, premises appel- he wasn't even on the when the injured. lant was appellant com- plains provide place of is Oliver's failure to a safe required her to work Certainly state law. safety requirements under the labor laws should be en- forced go in this state and their violation should not unpunished, merely but if Oliver was a third fellow- employee, duty place he had appellant no to furnish a — to work safe or If otherwise. was the president, Oliver was the mere he was personally liable in compensation tort or under act for by corporate sustained employees who are on defective owned and maintain- equipment. ed machines If Oliver was the actual employer, title made no difference. His provisions business was within the of the Workmen's Compensation Law, appellant's compens- law, rights able under and her there- under are exclusive."
292 granted apparently judgments were
Summary
for defendant
Metzger
authority
F.
v.
largely upon the
court
trial
J.
the
plain-
Inc.,
in which
Son,
N.W.2d
169
S.D.
&
84
Brunken
brought a:
Metzger
of a subcontractor
an
tiff
having
received
principal contractor after
tort action
the
sustaining summary
In
full workmen's
(now
upon
judgment
64.0108
our court relied
SDC
for defendant
62-3-10)which,
effect,
immunity of
em-
the
the
extended
SDCL
principal
principal
contractor
ployer
contractor. The
the
immunity
employer"
"statutory
and not
entitled to
considered
employer"
party
to a third
"some other
Metzger
evidently
portion
opinion
and under-
action. The
upon
standably
court in
action
relied
the trial
the
following
McEvilly
Kentucky
quote
L. E.
the
v.
from
case
the
Co.,
Ky.
Myers
In we conclude common-law actions are maintainable defendant Hasvold as a fellow- employee. immunity, was entitled to but this did Consequently, its not extend officers. employer" person than the occupies of "some other the status employee de- Compensation Act. under our Workmen's negli- individually as his insofar liable fendant injuries. But, as he gence caused or contributed *7 immunity, purposes "employer" for cannot be considered personally for conduct or conditions liable be held he cannot employer. falling responsibility within ambit genuine for decision facts material there are issues of granted. judgments summary should not have been consortium was for loss of case the action In this wife's purposes appeal her husband's combined is derivative As an action for loss of consortium action. trial with the should also be combined for nature it danger recovery spouse's of double action in order to avoid Erecting expense duplicate and the trials. See Thill v. Modern 865; 508, Company, 284 Minn. Ekalo v. Constructive 170 N.W.2d 82, 1; Millington Corporation, Service 215 A.2d v. South N.J. Co., eastern Elevator 22 N.Y.2d 293 N.Y.S.2d 239 N.E.2d 897; Fitzgerald Hicks, Inc., v. Meissner & 38 Wis.2d N.W. 595; Anno., Right Consortium, 2d Wife's of Action for Loss of 36 A.L.R.3d900.
Reversed and remanded for trial. WINANS, JJ„
BIEGELMEIERand concur.
WOLLMAN,J., dissents.
DOYLE,J., participating.
WOLLMAN,Judge (dissenting). undisputed record,
On facts in this I would hold that the statutory immunity defendant is entitled to from a common-law action for paragraph
I concur in the last opinion. of the court's