
    JACOBSON, Respondent v. STRONG & WAGGONER, et al, Appellants
    (287 N. W. 41.)
    (File No. 8175.
    Opinion filed July 15, 1939.)
   there so we could get hol-di of him when anything occurred. Of course there was nothing in his contract that stated that he had to sleep there. We wanted him available when we wanted to get hold of him.

“It was optional wherever he wanted to sleep. O'f course we wanted him there but of course we couldn’t necessarily hold him. He could have slept at one of the farm houses there. It was customary, you know, for the help to stay there. It was really optional with him. He could have slept at some of the neighbors. It was also optional with Groves. Naturally Giroves would not go to some place else to sleep and pay for lodging when they could get it free there. It was granted to them free if they desired to accept it.

“His staying there was quite a convenience to us people. We owned the bunk cars. I think it was understood that he would have a bed in the bunk car. * * *”

Under his contract of employment it would appear that he was required to do repair work at any time during the week, including Sundays. It would therefore appear also that it was of little consequence that the accident occurred on a Saturday night when he was free to go and come at will. This view finds support in the holding of able authority. Giliotti v. Hoffman Catering Co. et al., 246 N. Y. 279, 158 N. E. 621, 56 A. L. R. 500. Judge Pound in his .opinion briefly referred to the Holt Lumber Co. v. Industrial Commissioner, 168 Wis. 381, 170 N. W. 366, 367, in which the Supreme Court of Wisconsin had held that the accident arose out of and during the course of the employment, and we quote: “The general rule under the authorities is that when the contract of employment contemplates that the employe shall sleep upon the premises of the employer, the employe under such circumstances is considered to be performing services growing out of and incidental to such employment during the time he is on the premises of the employer. Rucker v. Read, 39 N. J. Law J. 48; Chitty v. Nelson, 2 B. W. C. C. 496; Alderidge v. Merry, 6 B. W. C. C. 450; Griffith v. Cole Bros. et al, 183 Iowa 415, 165 N. W. 577, L. R. A. 1918F, 923; Meyers v. Michigan Cent. R. Co., 199 Mich. 134, 165 N. W. 703; Cokolon v. Ship Kentra, 5 B. W. C. C. 658; International & G. N. R. Co. v. Ryan, 82 Tex. 565, 18 S. W. 219.”

In the foregoing the Industrial Commissioner found that the employer had placed the workman in such circumstances that his time was never his own and that he did not have any discretion as to where he might sleep. The same is true of the facts in the' instant case. The employee, Jacobson, had to be there night and day to perform the services for which he had been employed.

In the case of Larson et al. v. Industrial Accident Commission et al., 193 Cal. 406, 224 P. 744, 745, the court said: “The facts of the case we are now considering present a situation in which ‘the employer places the employee in such circumstances that his time is never his own, where he has no discretion as to where he shall sleep and where he shall eat, under such circumstances the workman must be considered in the employ of the employer all of the time, or at least performing a service which is incidental to tire employment he is engaged in.’ Holt Lumber Co. v. Industrial Comm., 168 Wis. 381, 170 N. W. 366; Honnold on Workmen’s Compensation, § 109, p. 373.” Bellman v. Northern Minn. Ore Co., 167 Minn. 269, 208 N. W. 802; Nester v. H. Korn Baking Co., 194 Iowa 1270, 190 N. W. 949; Griffith v. Cole Bros. et al., 183 Iowa 415, 165 N. W. 577, L. R. A. 1918F, 923. See, also, Younger v. Motor Cab Transportation Co. et al., 260 N. Y. 396, 183 N. E. 863, as to acts of employees whether personal and wholly unrelated to employment and where the same occurs “in course of and arises out of employment.”

From a careful consideration of all the evidence we believe that the evidence submitted by the respondent is sufficient to sustain the findings of the Industrial Commissioner wherein he found that the injury from which Jacobson died was an accident which arose out of and in the course of his employment. This court adheres to the rule of law announced in previous decisions that the findings of the Industrial Commissioner will not be disturbed on appeal if there is any reasonable, credible and substantial evidence tending to establish the Commissioner’s findings. Weiber v. England, 52 S. D. 72, 216 N. W. 850, Id., 59 S. D. 1, 238 N. W. 25; Day et al. v. Sioux Falls Fruit Co. et al., 43 S. D. 65, 177 N. W. 816; Vodopich v. Trojan Mining Co., 43 S. D. 540, 180 N. W. 965; Dependents of Shaw v. Freeman C. Harms Piano Co., 44 S. D. 346, 184 N. W. 204; Wakefield v. Warren-Lamb Lbr. Co., 46 S. D. 510, 194 N. W. 835; Ross v. Independent Sch. Dist., 49 S. D. 491, 207 N. W. 446; Cassels v. H. W. Cassels & Co. et al., 59 S. D. 643, 242 N. W. 587; Detling v. Tessier et al., 60 S. D. 405, 244 N. W. 538, Id., 61 S. D. 403, 249 N. W. 686; Barwin v. Independent School Dist. of Sioux Falls et al., 61 S. D. 275, 248 N. W. 257.

Appellants by assignments of error Nos. 6 and 7 contend that there is no evidence or finding to afford a basis for computation of compensation for death; that the applicable provision if any compensation is to be allowed will fall under subdivision 5 of Sec. 9461 of the S. D. Rev. Code of 1919, for the reason that the employment was not continuous the year round and that there should have been a determination by the Commissioner as to whether or not the deceased was employed more or less than two-hundred days during the year. Respondent attempts to meet this contention by saying that the average weekly wage received by Jacobson was $25 per week and as such would amount to the annual wage of $832 per year . The records show that Jacobson commenced work in December, 1935, in the shops at Mitchell and in January, 1936, worked on a graveling project and then because of poor weather conditions he was unable to work until in March when he did some graveling work and that he started the grading project in July, 1936. It would therefore seem that what this court said in et al. v. Roettele, 64 S. D. 36, 264 N. W. 191, relative to the basis of computation for one who worked at threshing operations and which work was seasonal and not continuous throughout the year and therefore must fall under subdivision 5 of Sec. 9461, S. D. 1919 Rev. Code, is applicable to the facts in the instant case. In Humphreys v. Frank Shuknecht, Jr., Const. Co. et al, 66 S. D. 112, 279 N. W. 246, 249, this court considered the question of the Industrial Commissioner’s computation of claimant’s total annual earnings for the basis of the award. It would seem that the claimant was engaged in hauling gravel by motor truck for road construction and that it was customary to operate only part of the whole number of working days in each year. In this last decision we discussed Meyer v. Roettele, supra, and also Smith v. Utah-Idaho Sugar Co., 63 S. D. 45, 256 N. W. 261, and said that this court cannot by construction limit this plain language to seasonal employment only. The court discussed seasonal occupations of threshing and work in sugar beet factories where it is customary to operate for only a portion of the whole number of working days in each year and then said:

“Subdivision 5 furnishes a complete scheme for determining the annual earnings in each case where the employment is such that it is the custom to operate for only a part of the working days of each year, and this is true whether or not the injured person has been employed by the same employer a full year prior to the time of. the accident. If the injured person had been employed by the same employer for a full year preceding the injury, and if the annual earnings are not otherwise determinable, then the days actually worked during the year should be used as a basis, subject to the minimum of two hundred; however, if tlie injured employee had not been employed by the same employer a full year preceding the injury (and such is the case before us), or if, having worked a full year, the annual earnings or the actual number of days worked are not determinable, then the industrial commissioner should determine from evidence the number of days it is customary to work in the particular type of employment, and use this number as a basis, again subject to the minimum of two' hundred.

“In our opinion the basis for computing this award must be subdivision 5 of said section. As we read subdivision 5, it is to be applied SO' far as the facts here are concerned by determining the number of days throughout the year it. is customary to work in the employment in which respondent was engaged, which in no event shall be less than two hundred, and then multiplying this number by the average daily earnings.”

The judgment appealed from must be reversed in order that there may be a determination whether the deceased was employed more or less -than 200 days during the year and to determine his average daily earnings as provided for by subdivision 5 of -Sec. 9461. The record seems sufficient in detail so that proper findings of fact may be made to support an award under the law as pointed out in this opinion. No costs will be taxed in this court.

POLLEY, J., concurs.

RUDOLPH and ROBERTS, JJ., concur in result.

SMITH, J., dissents.

SMITH, J.,

(dissenting). I am of the opinion that the accident which caused the death of the employee did not arisé in the course of his employment. Therefore I dissent.  