#### BOWER, Respondent, v. NUNEMAKER, Appellant.

(195 N. W. 506.)

(File No. 5144.

Opinion filed October 26, 1923.)

1. Master and Servant — Workmen’s Compensation — Requirements of Compensation Act for Claim and Settlement Not Applicable to An Action at Law.

An action at law, by an employee, for damages for personal injuries, not being a proceeding under the Compensation Act, failure to file claim for compensation with the Industrial Commissioner under Rev. Code 1919, Sec. 9547. is not a defense, and failure of employer to file, a memorandum of settlement with the Industrial Commissioner under Section 9467 does not prevent reliance on such settlement.

*6082. Master and Servant — Damages'—Action at Daw Dies Against Employer Carrying No Compensation Insurance.

An action at law lies in favor of an employee for damages for personal injuries, where the employer carried no compensation insurance, as required by Rev. Code 1919, Secs. 9439, 9482, and did not relieve himself from these provisions by section 9488, and under Rev. Code 1919, See. 9444, the defenses of contributory negligence, negligence of fellow servant, and assumption of risk, are not available to him.

3. Appeal and Error — Release—Whether Plaintiff Realized He Was Signing a Release Was Question for Jury.

Whether plaintiff realized he was signing a release at the time of settlement held a question for the jury under the evidence, and their finding is conclusive.

Appeal from Circuit Court, Gregory County; Hon. J. G. BartinE, Judge.

Action by F. C. Bower against Frank Nunemaker. Judgment for plaintiff, and defendant appeals.

Affirmed.

*Charles A. Davis,*of Burke, for Appellant.

*O. B. Ford,*of Gregory, and /. *R. Cash,*of Bonesteel, for Respondent.

Appellant .cited: L. R. A. 1916A, *221;*Krisman v. Johnson City & B. M'-. Coat Co., 190 111. App. 613; Dietz v. Big Muddy Coal Co., 263 111. 480, 105 N. E. 289; Harris v. Hobart Iron Co., 127. Minn. 3,99, 149 N. W. *662;*Gregutis v. Waclark Wire-Works, 86 N. J. L. 610, 92 Atl. 354; Gorrell v. Battelle, 93 Kans. 370, 144 Pac. 244; Shade v. Ask Grove Lime & Portland Cement Co., 92 Kans. 146, 139 P'ac. 1193.

POLLEY, J.

This is an a-ction for the recovery of damages for personal injury, Plaintiff had judgment, and defendant appeals.

[1] Appellant interposed two defenses. First, settlement and payment in . full of • such damages and release from respondent therefor; and, second, failure on the part o-f respondent to file his claim for- compensation with the Industrial Commissioner within one year after the injury as required by section 9457, R. C. 1919.

Respondent seeks to avoid the effect of the settlement and release, on the ground of the failure of appellant to file a memorandum. of such settlement with the Industrial -Commissioner within 20 days after such settlement, as required by section 9467, R. C. 19x9.

*609This is not a proceeding under the Workmen’s Compensation Law; consequently neither section 9457 nor section 9467, R. C. *1919,*apply.

[2] It is conceded that plaintiff had not excepted himself from the operation of the Workmen’s Compensation Law, therefore, he is presumed to have accepted its provisions. Section 9437, R, C. 19.19. If the defendant had 'been operating under such act, then ,by reason of section 9440, R. C. 1919, this action could not be maintained because in that case the remedy under the Compensation Act is exclusive. Section 9440, R. *C.*1919. But defendant did not carry workmen’s compensation insurance as required by sections 9439 and 9482, R. *-C.*1919, nor 'had he relieved himself from the provisions of these sections in the manner provided by section 9488. He, therefore, was not operating under said act. Richardson v. Farmers’ Co-operative Union, 45 S. D. 357, 187 N. W. 632. Therefore this action at law lay in favor of plaintiff and against defendant, and the defenses enumerated in section 9444, R. C. 1919, were not available to defendant.

[3] In regard to the settlement and release, respondent testified that at t'he time the settlement was -made he was suffering great pain; that he had had no sleep for several days; that he did not read the release, nor was it read to him before he signed it; that he was not told nor did- he know its contents nor that it ■contained a release; that he understood he was signing an agreement of some kind by -which he could get money that would enable him to procure treatment of his injury; and that upon receiving said money he went immediately to a hospital in Chan> berlain, where his injured limb was amputated. This matter was submitted to the jury as a question of fact under proper instructions, and the finding of the jury is conclusive. ,

The judgment appealed from- is affirmed.

Note. — Reported in 195 N. W. 506. See, Headnote (1), American Key-Numbered Digest, Master and servant, Key-Nos. 382, 398; Workmen’s Compensation Acts, Sec. 103 (1924 Anno.); (2) Master and servant, Key-No. 358; Workmen’s Compensation Acts, Sec. 106 (1924 Anno.); (3-4) Workmen’s Compensation Acts, Sec. 154, 158, 159, 160; Appeal and error, Key-No. 1001(1), 4 C. J. Sec. 2834; (5) Release, Key-No. 68(5), 34 Cyc. 1105.

On construction and effect of Workmen’s Compensation Acts generally, see notes in L. R. A. 1916A 23, and L. R. A. 1917D, 89.