Arne v. W. Silo Co.

• Decision Date: 13 May 1932
• Docket Number: No. 41265.,41265.
• Citation: 214 Iowa 511,242 N.W. 539
• Parties: ARNE v. WESTERN SILO CO. ET AL. ARNE v. JAMES MFG. CO. ET AL.
• Court: Iowa Supreme Court

214 Iowa 511

242 N.W. 539

ARNE

v.WESTERN SILO CO. ET AL.

ARNE

v.JAMES MFG. CO. ET AL.

No. 41265.

Supreme Court of Iowa.

May 13, 1932.

Appeal from District Court, Linn County; Atherton B. Clark, Judge.

Action by Mrs. Leora Arne, widow of Lee E. Arne, for compensation under the Workmen's Compensation Law (Code 1927, § 1361 et seq.) against Western Silo Company, employer, Employers' Mutual Casualty Company, Des Moines, insurer, and James Manufacturing Company, employer, Employers' Mutual Liability Insurance Company, Wausau, Wis., insurer.

The deputy industrial commissioner, by consent of parties, acted as arbitration committee at a combined hearing of the two separate actions, and rendered a finding in each that no compensation was due from either of the employers on the ground that the deceased, Lee E. Arne, was an independent contractor, and not an employee within the terms of the Workmen's Compensation Law.

On review before the industrial commissioner, both actions were consolidated. The industrial commissioner affirmed the decision of the arbitration committee.

On appeal to the Muscatine county district court, and, subsequently, by consent of all parties, transferred to the district court of Linn county, the latter court sustained the finding of the industrial commissioner as against the James Manufacturing Company and its insurer, and reversed the finding of the industrial commissioner as against the Western Silo Company and its insurer.

The appellant Western Silo Company now appeals on the reversal of the Linn county district court of the industrial commissioner's decision in its favor. The appellee-appellant, Mrs. Leora Arne, now appeals from the decision of the Linn county district court in sustaining the finding of the industrial commissioner in favor of the James Manufacturing Company and its insurer.

Reversed as to the Western Silo Company; affirmed as to the James Manufacturing Company.George C. Claassen, of Cedar Rapids, for Mrs. Leora Arne.

Miller, Miller & Miller, of Des Moines, for Western Silo Co.

Carl F. Jordan, of Cedar Rapids, for James Mfg. Co.

DE GRAFF, J.

The facts in this case are somewhat involved, because two separate actions were consolidated for trial. Separate decisions were filed by the deputy industrial commissioner, but a joint decision was filed by both the industrial commissioner, on review, and the district court, on appeal. The record is very voluminous on account of the many exhibits introduced by the several parties.

[1] This cause is not triable do novo here. Jones v. Eppley Hotels Co., 208 Iowa, 1281, 227 N. W. 153;Mallinger v. Webster City Oil Co., 211 Iowa, 847, 234 N. W. 254;Arthur v. Marble Rock Cons. Sch. Dist., 209 Iowa, 280, 228 N. W. 70, 66 A. L. R. 718, with cases cited.

Section 1441, Code 1927, provides: “While sitting as a board of arbitration, or when conducting a hearing on review, or in making any investigation or inquiry, neither the board of arbitration nor the commissioner shall be bound by common law or statutory rules of evidence or by technical or formal rules of procedure; but they shall hold such arbitrations, or conduct such hearings and make such investigations and inquiries in such manner as is best suited to ascertain and conserve the substantial rights of all parties thereto. Process and procedure under this chapter shall be as summary as reasonably may be.”

On the construction of the foregoing statute, see Swim v. Central Iowa Fuel Co., 204 Iowa, 546, 215 N. W. 603, with cases cited; Baker v. Roberts & Beier, 209 Iowa, 290, 228 N. W. 9.

Under section 1421, Code 1927, the definition of “workmen” or “employee” is given as meaning “a person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship, for an employer, except as hereinafter specified. The following persons shall not be deemed ‘workmen’ or ‘employees' * * * c. An independent contractor.”

This definition, of course, is confined strictly to the scope and limits of the so-called “Workmen's Compensation Act,” and thus restricts, for that purpose only, the meaning of the words defined. It is evident by the words employed that, while an independent contractor may be an “employee” in the usual sense, he is not under a contract of service, but, rather, he is under a contract for service, as respects the Workmen's Compensation Act.

Lee E. Arne, the deceased husband of the appellee-appellant, Mrs. Leora Arne, entered into a contract with the Western Silo Company on January 19, 1929.

This action was commenced in the first instance by the decedent's widow to establish compensation obligation against both the Western Silo Company and the James Manufacturing Company and their respective insurance carriers.

On March 1, 1929, at a place about eight miles southeast of Wilton, Iowa, Arne met his death through a collision of his automobile with an interurban railway car after having visited a farmer for the purpose of soliciting an order for a hoghouse, a product of the Western Silo Company. The question at issue is whether at the time of Arne's fatal injury his status and relationship with the Western Silo Company was that of an employee or of an independent contractor. Arne's working contract with the silo company states in the first paragraph thereof that “the first party (Silo Co.) has this day appointed the second party (Arne) as agent to sell its products.” Payment was to be made on a commission basis; Arne to furnish his own transportation and pay all of his own expenses. Any assistant sent out by the silo company to aid Arne was to be regarded as the agent of Arne, acting under his control, and for whom Arne should be responsible. Arne was also obligated to pay any such assistant sent out by the silo company. The silo company reserved the right to have others canvass his assigned territory, if Arne failed to canvass properly the same. The contract was subject to cancellation “by either party at any time.”

The contract in question must be viewed and construed as a contract for service, not of service, and therefore is a contract indicating independent employment which is excluded as compensable under the provisions of the Iowa Compensation Law. A mass of exhibits, which in lettering exhaust the letters of the alphabet, are found in this record. An examination of them does not strengthen the claim of the claimant. These exhibits plainly show that Arne was on his own time and expense. He depended on his commissions for expenses, as well as profit, and was under obligation for delivery of such orders only as he might secure. The home office of the silo company wrote Arne, as well as other agents of the silo company, that “we maintain a service department to help you to arouse interest * * * and to help make it easier for you to close sales. We are prepared to furnish free of charge electrotypes and stereotypes for newspaper advertising. If you care to do any advertising at your own expense in your local paper, this service is available to you.” Under Arne's working agreement, and consistent with all the record, Arne's time was his own. He was working under another agreement with the James Manufacturing Company, which company, as well as the silo company, had full knowledge and understanding that Arne was so working for both companies. Arne was at liberty to work for either company or both companies at the same time. The instant record discloses that an attempt was made to prove that, when Arne left the farm just prior to his death, he intended to perform service on behalf of the James Manufacturing Company. It is recognized law that a person does not deprive himself of the right of recovery by working for more than one employer at a time, if the relation of employer and employee exist. Sargent v. Knowlton et al., 224 Mich. 686, 195 N. W. 810, 30 A. L. R. 993.

In the case at bar, Arne used methods of his own choosing in the pursuit of business. He made his own schedule, and worked it as he pleased. If he earned commissions, the silo company received profits, and this was the full extent of mutuality of interest. In the examination of our own decisions, we find pertinent language that is applicable to the legal principle involved in this case. In Pace v. Appanoose County, 184 Iowa, 498, 168 N. W. 916, 919, it is said: “The test oftenest resorted to, in determining whether one is an employee or an independent contractor, is to ascertain whether the employee represents the master as to the result of the work, or only as to the means. If only as to the result and himself selects the means, he must be regarded as an independent contractor. [Citing cases.] The mere fact that the owner may have an overseer or architect to see that the work complies with the contract or that the work is to be to the owner's satisfaction does not change the character of the contract, if it meets the test stated. * * * Whatever the other conditions of the contract may be, if in its essential features it provides that the employer retain no control over the details of the work, but leaves to the other party the determination of the manner of doing it, without subjecting him to the control of the employer, the party undertaking to do the work is a contractor and not a mere employee.”

In Norton v. Day Coal Co., 192 Iowa, 160, 180 N. W. 905, 908, it is said: “The relationship of master and servant does not exist unless there be the right to exercise control over methods and detail--to direct how the result is to be obtained. The power to direct must go beyond telling what is to be done--to telling ‘how it is to be done.’ * * * It is elementary doctrine, and it would fill many pages to cite the support it has, that one is not an employee if he may choose his own method of working--the mode and manner of doing the work. * * * It is not enough that there be power to see to it that the work is done to the satisfaction of the one who gives it. This power is...