12 N.W.2d 553 | S.D. | 1944
Lead Opinion
Everett Wulff, a single man, was employed by Gus Swanson in operating a combine. He suffered an accident causing mortal injuries from which he died.
The deceased had no children or other dependents, except his mother, the claimant herein. Claimant, at the time of Everett's death, was living with him, temporarily, under an existing arrangement whereby she was to live in turn with her several children upon all of whom she was dependent for support. Since Everett's death she has lived in turn with her three living children and has turned the compensation checks over to the child with whom she in turn stayed. Claimant at the time of the hearing was sixty-three years old. According to the American Experience Tables of Mortality her life expectancy was 12.26 years. She was in poor health and required constant medical attention. She suffered from high blood pressure, a nervous condition, was under the care of physicians and to some extent had been taking medicine. There is testimony to the effect that she had suffered two light strokes; her blood pressure was high, and that she did not have a very strong heart. There was no medical testimony as to the condition of the claimant.
The record discloses a written agreement whereby defendants agreed to pay the claimant the sum of $1650 under the workmen's compensation law, in installments of $16.50 per month. The agreement was approved by the industrial commissioner. Defendants have continued to make the payments in accordance with said agreement.
Claimant, on April 10, 1942, filed a petition with the industrial commissioner for a lump-sum settlement. Defendants filed written objections. At the conclusion of the hearing, the commissioner entered findings of fact and conclusions of law granting the petitioner a lump-sum award in the commuted amount of $1315. Defendants appealed to the circuit court of Marshall County. A judgment by the *541 circuit court affirming the lump-sum award was made and filed on March 12, 1943. This is an appeal from the judgment.
Appellants at the outset in their brief urge error to the industrial commissioner's making conclusion of law No. II, insisting that the commissioner abused his discretion in ordering a lump-sum settlement because there is no evidence from which the sum of the probable future payments could be determined. Under SDC 64.0510 the burden of proof is undoubtedly upon the claimant to establish the proper facts from which the commissioner can determine the total sum of the probable future payments. The record does not contain evidence from which the commissioner could have determined, with any degree of accuracy, the amount of the probable future payments. We may safely say that the record is quite silent as to evidence from which the commissioner could base the amount fixed as the proper lump sum to be paid as compensation. Skaggs v. Industrial Commission et al.,
Our workmen's compensation statutes, it will be observed, are quite similar to the Illinois statutes. An examination of the Illinois decisions discloses that the interpretation of the language of the statute we have just quoted cannot apply to only one of the parties, but must apply to both parties. Section 9 of the Illinois statute, Smith-Hurd Stats. c. 48, § 146, from which our § 25, Ch. 376, Session Laws 1917, Workmen's Compensation Law, now SDC 64.0510, was drafted is set forth and construed in Goetlitz *542
Co. v. Industrial Board of Illinois et al., 1917,
In a later case, Illinois Zinc Co. v. Industrial Commission et al.,
It will be observed that the facts in the instant case, relating to the age and physical condition of the respondent, *543
makes the award uncertain and contingent as to duration and under SDC 64.0402(6) there is a possibility, as a dependent of the deceased, that the respondent might die. The appellants' liability would then terminate. Matecny, Administrator v. Vierling Steel Works,
We think that the facts before us clearly indicate that the usual acceptable theory of the Workmen's Compensation Act, as decided by courts passing upon statutes similar to our SDC 64.0510 must apply in this: That in the event the wage earner dies as a result of accidental injuries, the purpose of the Act is to furnish to his dependents a fund payable in installments, similar to, and in lieu of the weekly pay check and to recompense in part such dependents for the loss of the earnings of the wage earner. The public is interested in having the dependents taken care of; and if paid in installments, there would be a less chance of the loss of the funds through unwise investments or by squandering by the dependents. It may be stated generally that the allowance of a lump-sum award is the exception and not the general rule. 71 C.J. 876, § 603; Bacon v. United Electric R. Co.,
For the reasons herein stated, the judgment of the circuit court is reversed, the order of the industrial commissioner is set aside and the circuit court will remand with instructions to the industrial commissioner to proceed and take such further proceedings as are not inconsistent with the views herein expressed.
POLLEY and ROBERTS, JJ., concur in result.
RUDOLPH, J., concurs specially.
SMITH, J., dissents.
Concurrence Opinion
It is my opinion that giving full effect to the Illinois cases cited in the opinion of WARREN, P.J., there could never be a lump-sum payment ordered by the commissioner without the consent of the employer. On the other hand, should we in this case sustain the order for lump-sum payment, we would ignore entirely the requirement of the statute that such lump-sum payment must be "to the best interests of the parties", including the employer. Therefore, without accepting the extreme position taken by the Illinois cases, I have concluded that where, as in this case, it is shown the beneficiary is in such physical condition that a serious question is presented regarding the likelihood of the beneficiary living the length of time required to complete the installment payments, it cannot be held to be to the best interest of the employer to require a lump-sum payment, the amount of *545 which contemplates that the beneficiary will live out the installment period.
It is obvious, I believe, that the intent of the statute should be clarified by legislative action.