SOUTH DAKOTA.

ACTS OF 1917.

CHAPTER 376.-Compensation of workmen for injuries.

PART I-RIGHTS AND REMEDIES.

SECTION 1. This act shall be known as "The South Dakota workmen's compensation law."

Title.

Election pre

SEC. 2. From and after the taking effect of this act, every employer and every employee, except as herein stated, shall be pre- sumed. sumed to have accepted the provisions of this act respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of employment, and shall be bound thereby, except as hereinafter provided, and every contract of service between any employer and employee covered by this act, written or implied, now in operation or made or implied prior to the taking effect of this act, shall after the act has taken effect, be presumed to continue.

Walving re

SEC. 3. Either an employer or an employee, who has excepted himself as hereinafter provided, from the operation of this act, jections. may at any time waive such exemption and thereby accept the provisions of this act by giving notice as herein provided.

Notices

The notice of exemption and the notice of acceptance heretofore referred to shall be given thirty days prior to any accident made, how. resulting in injury or death: Provided, That if any such injury occurred less than thirty days after date of employment, notice of such exemption or acceptance given at the time of employment shall be sufficient notice thereof. The notice shall be in writing or print in a substantial form prescribed by the industrial commissioner and shall be given by the employer by posting the same in a conspicuous place in the plant, shop, office, room or place where the employee is employed, or by serving it personally upon him; and shall be given by the employee by sending the same in registered letter, addressed to the employer at his last known residence or place of business, or by giving it personally to the em ployer, or any of his agents upon whom a summons in civil action may be served under the laws of the State.

A copy of the notice in prescribed form shall also be filed with the industrial commissioner.

SEC. 4. Every employer coming within the compensation provisions of this act shall insure the payment of compensation to his employees in the manner hereinafter provided, and while such insurance remains in force he, or those conducting his business, shall only be liable to any employee for personal injury or death by accident in the extent and in the manner hereinafter specified.

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SEC. 5. The rights and remedies herein granted to an employee subject to this act on account of personal injury or death by clusive. accident arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, on account of such injury or death.

Statutory

SEC. 6. Nothing in this act shall be construed to relieve any em ployer or employee from the penalty for failure or neglect to per- duties. form any statutory duty in connection with such employment.

Willful, etc.,

SEC. 7. No compensation shall be allowed for an injury or death due to the employee's willful misconduct, including intentional injuries.

Exemptions.

Defenses abrogated, when;

Available,

when.

self-inflicted injury, intoxication, and willful failure or refusal to use a safety appliance or perform a duty required by statute.

The burden of proof under this section shall be on the defendant employer.

SEC. 8. This act shall not apply to casual laborers or to a laborer, not employed in the usual course of the trade, business, profession or occupation of the employer, to farm or agricultural laborers, to domestic servants, nor to employers of such person, unless such employees and their employers voluntarily elect in the manner hereinafter specified to be bound by this act.

SEC. 9. Every employer who elects not to operate under this act shall not in any suit at law by an employee electing to operate under this act to recover damages for personal injury or death by accident be permitted to defend any such suit at law upon any one or all of the following grounds:

(a) That the employee was negligent:

(b) That the injury was caused by the negligence of a fellow employee:

(c) That the employee had assumed the risk of the injury. SEC. 10. In any action to recover damages for personal injury or death, brought by any employee who elects not to operate under this act, against any employer accepting the compensation provisions of this act, the employer may avail himself of the defenses of contributory negligence, negligence of a fellow servant and assumption of risk, and such other defenses as would be available in such actions prior to the taking effect of this act.

Liability of SEC. 11. Whenever an injury for which compensation is payable third persons. under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may at his option either claim compensation or proceed at law against such other person to recover damages or proceed against both the employer and such other person, but he shall not collect from both; and if compensation is awarded under this act, the employer having paid the compensation, or having become liable therefor, may collect in his own name or that of the injured employee from the other person in whom legal liability for damages exists, the indemnity paid or payable to the injured employee. SEC. 12. A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any one of his subcontractors and engaged upon the subject matter of the contract, to the same extent as the immediate employer.

Employees of contractors.

Any principal, intermediate, or subcontractor who shall pay compensation under the foregoing provision may recover the amount paid from any person who, independently of this section, would have been liable to pay compensation to the injured employee.

Every claim for compensation under this section shall in the first instance be presented to and instituted against the immediate employer, but such proceeding shall not constitute a waiver of the employee's rights to recover compensation under this act from the principal or intermediate contractor, provided, that the collection of full compensation from one employer shall bar recovery by the employee against any others, nor shall he collect from all a total compensation in excess of the amount for which any of the said contractors is liable.

This section shall apply only in cases where the injury occurred on, in or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management.

SEC. 13. No contract or agreement, written or implied, no rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this act except as herein provided.

SEC. 14. All rights of compensation granted by this act shall have the same preference or priority for the whole thereof against

the assets of the employer as is allowed by the law for any unpaid wages for labor.

Assignments

SEC. 15. No claim for compensation under this act shall be assiguable, and all compensation and claims therefor shall be and exempt from all claims of creditors.

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SEC. 16. The provisions of this act except sections 3, 9 and 10 Public emshall apply to the State, and any municipal corporation within the ployees. State or any political division thereof, and to the employees

thereof.

SEC. 17. This act, except section 43, shall not apply to employees Interstate engaged in interstate or foreign commerce, nor to their employ- and foreign ers, in case the laws of the United States provide for compensa- commerce. tion or for liability for injury or death by accident of such

employees.

Extraterrito

SEC. 18. Every employer and employee under this act, except as provided in section 17, shall be bound by the provisions of the riality. act whether injury by accident or death resulting from such injury occurs within the State or in some other State or in a foreign country.

SEC. 19. The provisions of this act shall not apply to injuries or Prior indeath nor to accidents which occurred prior to the taking effect juries. of this act.

PART II.-COMPENSATION SCHEDULE.

SECTION 20. Every injured employee or his representative shall Notice of inimmediately upon the occurrence of an injury, or as soon thereafter jury. as practicable, give or cause to be given to the employer written notice of the injury and the employee shall not be entitled to physician's fee nor to any compensation which may have accrued, under the terms of this act, prior to the giving of such notice, unless it can be shown that the employer, his agent or representa tive had knowledge of the injury or death, or that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity or the fraud or deceit of some third person, or for equally good reason; but no compensation shall be payable unless written notice is given within thirty days after the occurrence of the injury or death, unless reasonable excuse is made to the satisfaction of the industrial commissioner for not giving such notice.

SEC. 21. The notice provided in the foregoing section shall state in ordinary language the name and address of the employee, the time, place, nature and cause of the injury or death, and shall be signed by the employee or by a person in his behalf, or in the event of his death by any one or more of his dependents, or by a person in their behalf.

No defect or inaccuracy in the notice shall be a bar to compensation, unless the employer shall prove that his interest was prejudiced thereby, and then only to the extent of such prejudice. Said notice shall be given personally to the employer or any of his agents upon whom a summons in civil action may be served under the laws of the State, or may be sent by registered letter addressed by [to] the employer at his last known residence or place of business.

SEC. 22. The right to compensation under this act shall be forever barred unless within one year after the injury or if death results therefrom, within one year after such death, a claim for compensation thereunder shall be filed with the industrial commissioner.

SEC. 23. The amount of compensation which shall be paid for an injury to the employee resulting in death shall be:

(a) If the employee leaves any widow, child, or children, whom he was under legal obligation to support at the time of his injury, a sum equal to four times the average annual earnings of the employee, but not less in any event than one thousand six hundred and fifty dollars, and not more in any event than three thousand dollars. Any compensation payments other than necessary

Form.

Claims.

Compensa

tion for death;

Nonfatal inJuries.

medical, surgical, or hospital fees or services shall be deducted in ascertaining the amount payable on death.

(b) If no amount is payable under paragraph (a) of this section, and the employee leaves any parent, grandparent, brothers or sisters who were dependent upon him for support at the time of the accident, a sum equal to four times the average annual earnings of the employee, but not less in any event than one thousand six hundred and fifty dollars and not more in any event than three thousand dollars. Any compensation payments other than necessary medical, surgical, or hospital fees or services shall be deducted in ascertaining the amount payable on death.

(c) If no amount is payable under paragraphs (a) or (b) of this section, and employee leaves collateral heirs dependent at the time of the injury to the employee upon his earnings, such a percentage of the sum provided in paragraph (a) of this section as the average annual contributions which the deceased made to the support of such collateral dependent heirs during two years preceding the injury bears to his earnings during such two years.

(d) If no amount is payable under paragraphs (a) or (b) or (c) of this section, a sum not to exceed one hundred and fifty dollars for burial expenses.

(e) All compensation except for burial expenses, provided for in this section to be paid in case injury results in death, shall be paid in installments equal to one-half the average earnings, at the same intervals at which the wages or earnings of the employee were paid; or if this shall not be feasible, then the installments shall be paid weekly: Provided, Such compensation may be paid in a lump sum upon petition as provided in section 25 of this act. (f) The compensation to be paid for injury which results in death, as provided in this section, shall be paid at the option of the employer either to the personal representative of the deceased employee or to his beneficiaries, and shall be distributed to the heirs who formed the basis for determining the amount of compensation to be paid by the employer, the distributees' shares to be in the proportion of their respective dependency at the time of the injury on the earnings of the deceased: Provided, That in the judgment of the court appointing the personal representative, a child's distributive share may be paid to the parent for the support of the child. The payment of compensation by the employer to the personal representative of the deceased employee shall relieve him of all obligation as to the distribution of such compensations so paid. The distribution by the personal representative of the compensation paid to him by the employer shall be made pursuant to the order of the court appointing him.

(g) No compensation shall be payable under this section to a widow unless she was living with her deceased husband at the time of his death or was then dependent upon him for support. Should any dependent of a deceased employee die or should the widow remarry, the right of such dependent or widow to compensation under this section ceases.

SEC. 24. The amount of compensation which shall be paid to the employee for an injury not resulting in death shall be:

(a) The employer shall provide necessary first aid, medical, surgical and hospital services; also medical, surgical and hospital services for a period not longer than four weeks, not to exceed, however, the amount of $100. The employee may elect to secure his own physician, surgeon or hospital services at his own expense.

(b) No compensation shall be paid under this act for injury which does not incapacitate the employee for a period of at least two weeks from earning full wages, but if incapacity extends beyond the period of two weeks, compensation shall begin the fifteenth day after the injury: Provided, however, That if such disability continues for eight weeks or longer, such compensation shall be computed from the date of injury.

(c) For any serious and permanent disfigurement to the hand, head or face, the employee shall be entitled to compensation for such disfigurement, the amount to be fixed by agreement or by arbitration in accordance with the provisions of this act, which amount shall not exceed one-quarter of the amount of the compensation which would have been payable as a death benefit under paragraph (a) of section 23, if the employee had died as a result of the injury at the time thereof, leaving heirs surviving, as provided in said paragraph (a) of section 23: Provided, That no compensation shall be payable under this paragraph where compensation is payable under paragraphs (d), (e) or (f) of this section: And, provided, further, That when disfigurement is to the hand, head or face as a result of an injury for which compensation is not payable under paragraph (d), (e) or (f) of this section, compensation for such disfigurement may be had under this paragraph.

(d) If, after the injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall except in the cases covered by the specific schedule set forth in paragraph (e) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in paragraphs (b) and (h) of this section, equal to one-half of the difference between the average amount which he earned before the accident, and the average amount which he is earning, or is able to earn in some suitable employment or business after the accident. In the event the employee returns to the employment of the employer in whose service he was injured, the employee shall not be barred from asserting a claim for compensation under this act, provided notice of such claim is filed with the industrial commissioner within eighteen months after he returns to such employment, and the said commissioner shall immediately send to the employer, by registered mail, a copy of such notice.

(e) For injuries in the following schedule, the employee shall receive in addition to compensation during the period of temporary total incapacity for work resulting from such injury, in accordance with the provisions of paragraphs (a) and (b) of this section, compensation for a further period, subject to the limitations as to time and amounts fixed in paragraphs (b) and (h) of this section, for the specific loss herein mentioned, as follows; but shall not receive any compensation under any other provision of this act.

For the loss of a thumb, or the permanent and complete loss of its use, fifty per cent of the average weekly wage during forty weeks;

For the loss of a first finger, commonly called the index finger, or the permanent and complete loss of its use, fifty per cent of the average weekly wage during thirty weeks;

For the loss of a second finger, or the permanent and complete loss of its use, fifty per cent of the average weekly wage during twenty-five weeks.

For the loss of a third finger or the permanent and complete loss of its use, fifty per cent of the average weekly wage during twenty weeks;

For the loss of a fourth finger, commonly called the little finger, or the permanent and complete loss of its use, fifty per cent of the average weekly wage during fifteen weeks;

The loss of the first phalange of the thumb, or any finger, shall be considered to be equal to the loss of one-half of such thumb or finger and compensation shall be one-half of the amounts above specified;

The loss of more than one phalange shall be considered as the loss of the entire finger or thumb: Provided, however, That in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand;

For the loss of a great toe, fifty per cent of the average weekly wage during thirty weeks;

Schedule.