Allied Mut. Cas. Co. v. Dahl

• Decision Date: 11 June 1963
• Docket Number: No. 50955,50955
• Citation: 122 N.W.2d 270,255 Iowa 208
• Parties: ALLIED MUTUAL CASUALTY COMPANY, Plaintiff-Appellee, v. Patrick DAHL, Leonard G. Wolf, Leonard G. Wolf, d/b/a Wolf For Congress Club, Defendants-Appellees, Vincent Goedken, father and next friend of Ernest V. Goedken, a minor, Ernest V. Goedken and Vince Goedken, Defendants-Appellants.
• Court: Iowa Supreme Court

Page 270

122 N.W.2d 270

255 Iowa 208

ALLIED MUTUAL CASUALTY COMPANY, Plaintiff-Appellee, v. Patrick DAHL, Leonard G. Wolf, Leonard G. Wolf, d/b/a Wolf For Congress Club, Defendants-Appellees, Vincent Goedken, father and next friend of Ernest V. Goedken, a minor, Ernest V. Goedken and Vince Goedken, Defendants-Appellants.

No. 50955.

Supreme Court of Iowa.

June 11, 1963.

Clewell, Cooney & Fuerste, Dubuque, for defendants-appellants.

C. F. Neylan, Elkader, for defendants-appellees.

Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, for plaintiff-appellee.

STUART, Justice.

Ernest Goedken, a minor and one of the defendants, received a serious personal injury while riding in the back end of a panel truck owned by the defendant Wolf, driven by the defendant Dahl and insured by the plaintiff, Allied Mutual Casualty Company. An action for damages was commenced on behalf of Ernest V. Goedken against Wolf and Dahl. Plaintiff insurer then instituted this action of a declaratory judgment against Wolf, Dahl, Ernest Goedken and his father and next friend Vincent Goedken alleging Dahl and Ernest Goedken were both employees of Wolf and that Wolf's insurance policy does not provide coverage to either Wolf of Dahl under these circumstances. The trial court so held and the Goedkens have appealed. Neither Wolf nor Dahl has taken an appeal.

The accident occurred October 17, 1958 on the grounds of the National Corn Picking Contest near Cedar Rapids in Linn County, Iowa. Ernest Goedken was attending the event with some of his teenage friends. As they were walking by a tent which was being used as headquarters for the Democratic Party, Patrick Dahl stopped them and asked if they would like to earn some extra money by placing handbills on behalf of the candidacy of Leonard G. Wolf for Congressman on the cars parked in a lot some 500 feet or more away.

The boys, including Ernest Goedken, expressed interest and Mr. Dahl agreed to pay them one dollar apiece for doing the job. When he had a group of about 10 boys, he told them to get into a panel truck which bore Mr. Wolf's name and contained some 50,000 pieces of his literature. Mr. Dahl drove the boys to the parking lot where they distributed Mr. Wolf's literature under his direction and supervision. As Mr. Dahl and some of the boys, including Ernest Goedken, were standing near the truck waiting for the others to finish, he asked them if they would like to pass out bills at another lot at the other end of the grounds about 1 1/2 miles away. The boys stated they would have to have more money. Dahl said he would have to go back to the democratic tent and get some more money. The boys got into the pickup truck and Mr. Dahl headed back to the tent. Ernest Goedken was injured on this trip when the rear door of the panel truck which was left open, hit a solid object, closed and pinned his leg between the door and the frame of the truck. The injury was severe because Mr. Goedken is a hemophiliac.

Mr. Dahl did not learn of the injury to Ernest Goedken until he returned to the truck from democratic headquarters. He made arrangements for him to be taken care of and then took the other boys to the second lot where the bills were distributed. The boys did not know in advance what they were going to be paid for distributing the literature on the second lot. Mr. Dahl wanted to see how many were going to stay and finish and intended to give them what he thought they were worth. There was evidence from which the trial court could find the boys were not paid anything until the second lot was completed. There was also evidence from which the court could find there was no doubt about Mr. Dahl getting the extra money for the second lot and that it was just a matter of picking it up.

After the bills were distributed Mr. Dahl returned to the vicinity of the democratic tent and gave Ernest Goedken $2.00 because he 'felt sorry for him because he wanted to go on and do the other lot'.

Under these facts, the insurer claims the driver Dahl is not protected under the definition of insured contained in the policy, which, in its pertinent parts, reads as follows:

'(a) With respect to insurance for bodily injury liability * * * the unqualified word 'insured' includes * * * any person while using the automobile * * * (with permission). The insurance with respect to any person * * * other than the named insured * * * does not apply * * * to any employee with respect to injury of another employee of the same employer injured in the course of such employment in an accident arising out of the use of the automobile in the business of such employer.'

The insurer also claims the owner Wolf is not protected by virtue of an exclusion contained in the policy as follows:

'This policy does not apply * * * to bodily injury of any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefore are in whole or in part either payable or required to be provided under any workmen's compensation law, or (2) other employment by the insured.'

The trial court found that both Dahl and Goedken were employees of Wolf and therefore the policy of insurance did not protect either Wolf of Dahl.

Counsel for Ernest Goedken concede findings of fact by the trial court in a law action are binding upon this court, if supported by substantial evidence. No issue is raised on this appeal of the court's finding that Dahl was an employee of Wolf. They contend, however, there is no evidence in the record from which the court could find: (1) Goedken was an employee as no contract of employment existed at the time of the accident; (2) the transportation furnished at the time of the accident was expressly or impliedly a part of the employment contract; (3) the particular trip on which the accident occurred was in the 'course of employment'. In connection with 3 they also claim the insurer did not plead and the court did not find the accident occurred in the 'course of employment'. We will discuss these contentions in the above order, which does not correspond with the numbered assignments of error.

I. In his reply argument appellant contends he was not an employee at the time of the accident because the duty of passing out handbills at the first lot had been completed and no new employment contract had been agreed upon as the boys had not seen the second lot and didn't know what they would be paid. The trial court found: 'Goedken was in the employ of Wolf at least from the time they left the first lot and at the time of the injuries. In fact the court doubts that there was a break in the employment when the billing of the first lot was completed. The court feels there was a continuation of the employment at the suggestion of Dahl and the assent of the boys.'

There is substantial evidence to support the trial court's findings. All discussion and negotiations, which were quite brief and informal, appear to have taken place before they left the first lot. Mr. Dahl testified: 'This discussion took place when we were nearly finished with the lot and when some of the boys were waiting for a few to finish up. At that time we came to this agreement. This agreement was that I would get some more money to show them that I would pay them in good faith and then we would go down and do the other lot.' The boys showed their assent by getting back into the pickup truck. There is no evidence of any further discussion. The boys, at that time, knew as much about the wages they were to receive for distributing the bills on the second lot as they knew until they were actually paid when the work was completed. The fact the boys were not paid anything until the second lot was completed tends to support the trial court's conclusion that the employment was continuous and uninterrupted. In any event, there is evidence that Goedken was rehired prior to the trip back to the democratic tent for the money to pay the boys.

II. Appellant argues that even if we assume there is evidence to support a finding that Goedken was an employee of Wolf at the time of the accident, there is no evidence the transportation being furnished the boys to and from their work as bill distributors was either an express or implied obligation of the contract of employment. This is important in determining whether the injury arose out of and in the course of employment.

While these provisions in liability insurance policies have not been before this court for construction prior to the instant case, this proposition has been considered many times in other jurisdictions. The court in the case of Farm Bureau Mutual Automobile Insurance Co. v. Smoot, D.C., 95 F.Supp. 600, states the general rule to be:

'The weight of authority is to the effect that an employee making use of transportation customarily and gratuitously furnished by the employer, in the absence of an express provision for same, is not acting in the course of his employment unless a duty to transport can be implied from the attendant circumstances in the contract of hiring. Konopka v. Jackson County Road Commission, 270 Mich. 174, 258 N.W. 429, 97 A.L.R. 552; In re Donovan, 217 Mass. 76, 104 N.E. 431. This duty may be implied where it is shown that the transportation was provided as an incident to procuring the services of an employee whose home is a great distance from the place of work. Johnson v. Aetna Casualty & Surety Co., 5 Cir., 104 F.2d 22; Southern State Mfg. Co. v. Wright, 146 Fla. 29, 200 So. 375. It may also be implied where the transportation provided by the employer is shown to have been a necessary incident to the employment because it was the only practical means by which the employee could travel to and from the place of work. Venho v. Ostrander Railway & Timber Co., 185 Wash. 138, 52 P.2d 1267; Lamm v. Silver Falls Timber Co., 133 Or. 468, 277 P. 91, 286 P. 527, rehearing denied, 133 Or. 524, 291 P. 375, * * *. At any rate, it must be shown...