Bashford v. Slater
| Decision Date | 04 April 1961 |
| Docket Number | No. 50145,50145 |
| Citation | 108 N.W.2d 474,252 Iowa 726 |
| Parties | Donald J. BASHFORD, Appellant, v. Lester (Bud) SLATER, Hawkeye Racing Association, an Iowa Corporation and Grundy County Agriculture Society, also known as Grundy County Fair Association, and/or Grundy County Fair Board, an Iowa Corporation, Appellees. |
| Court | Iowa Supreme Court |
Kennedy, Kepford, Kelsen & Balch and Frederick G. White, Waterloo, for appellant.
K. L. Kober, Waterloo, for Lester (Bud) Slater and Hawkeye Racing Association, apellees.
Mosier Mosier, Thomas & Beatty, Waterloo, Willoughby, Strack & Sieverding, Grundy Center, for Grundy County Agricultural Society, appellee.
This is a common-law action for damages for injuries sustained by plaintiff when hit by a car driven by defendant Slater and is based upon alleged negligence of Slater. It is the second time it has been before this Court. See Bashford v. Slater, 250 Iowa 857, 96 N.W.2d 904.
The defendant Hawkeye Racing Association, hereafter called Association, is engaged in promoting and staging stock car races. The defendant Grundy Agricultural Society, hereafter called Society, owns the Grundy County Fair Grounds. Defendant Slater is a stock car racing driver. Plaintiff was employed by the Accociation to act as a starter or flagman at races staged by the Association on the Fair Grounds above mentioned. While so acting plaintiff was hit by a car driven by Slater who was engaged in 'packing the track' prior to the racing. In addition to the above facts, the petition alleges that the negligence of Slater, he being a person or agency employed by Society and Association as parties to a joint venture in the furtherance or accomplishment of a common purpose, is chargeable and imputable to the Society and Association, and that the negligence of Slater is the negligence of his codefendants.
Defendant Society filed a motion to dismiss the petition as not stating a cause of action. After citing Section 85.3, Code 1958, I.C.A., Workmen's Compensation Act, it asserts that neither the employer, association, nor the employee, plaintiff, at any time filed a notice to reject the provisions of the compensation act, as provided in Chapter 85, Code 1958, I.C.A. That plaintiff is barred from maintaining a law action against the Association, and under the allegations of the petition is barred from maintaining any action against any parties alleged to be joint venturers.
Plaintiff then amended his petition by alleging that the Association did not insure its liability under Section 87.1, Code of Iowa, I.C.A., and did not have more than five persons engaged in hazardous employment within purview of Sections 87.16 and 87.21 of the Code, I.C.A. That the Association is therefore liable under common law as modified by statute.
Before the motion to dismiss was submitted to the Court it was stipulated by the parties as follows: In order to obtain a final determination of the points raised by the Society, in its motion to dismiss, it is stipulated; (1). Contract between Association and Society is in evidence insofar as the trial Court's determination of the motion is concerned. (2). Contract was in effect on date in question. (3). Plaintiff, when injured, was an employee of the Association; was originally employed by it; exclusively paid by it; it deducted Society Security and withholding taxes from his salary or wages; the matter of his discharge rested exclusively with it and that it gave him his orders or instructions. (4). The Society did not originally employ plaintiff; gave him no orders or instructions; paid no Social Security, withheld no tax on him and did not carry him on its records as an employee. (5). The Association did not insure its liability, Section 87.1, Code of Iowa, I.C.A.; that it did not have more than five persons engaged in hazardous employment, Sections 87.16 and 87.21 of the Code, I.C.A. (6). Society carried workmen's compensation on its employees, whomsoever they may have been, Section 87.1, Code 1958, I.C.A.
The trial court then found that the Society had workmen's compensation as contemplated by Section 87.1, Code, I.C.A.; that plaintiff alleges in his petition that the Association and Society were engaged in a joint venture, and plaintiff was an employee of the Association. The Court then concluded Shortly thereafter the court amended its findings by adding the following: 'Plaintiff denies he was an employee of the Society, or that its insurance covered him.' Plaintiff appeals. It might be stated that a motion to dismiss filed jointly by Slater and Association was overruled and no appeal was taken therefrom.
Appellant assigns as error the sustaining of the motion to dismiss stating four reasons why: (1) Liability of Association and Society is that of joint venturers and not as partners. (2) Plaintiff was at no time an employee of the Society. (3) The compensation act limits recovery thereunder to actions brought by the employee against the employer and the protections of the act are available to no other person. (4) Under the act an employee may recover compensation against the employer and prosecute a tort action against a third party for damages arising out of the same injury. In his brief and argument he states the proposition presented by this appeal to the court is that: 'Can an employer, who together with another employer, enters into a joint venture, and who as a part of his contribution to such joint venture, offers the services of an employee, escape tort liability as provided by statute from an injury sustained by said employee in the course of his employment through claiming the protection of insurance carried by his fellow joint venturer for the benefit of that employer's employee only?' If this be the issue presented, then we are asked to determine whether or not, under this record and the court's decision upon the motion to dismiss filed by the Society, plaintiff has a cause of action against the association. The liability of the association is in no way involved in this appeal. Its motion to dismiss was overruled and it has not appealed. The case is still pending against it in the trial court and we have no comments to make thereon.
However, irrespective of the statement of counsel, above quoted, we think the real issue presented by the error, assigned and argued by counsel in their brief, goes directly to the question of the efficacy of the matter urged by the Society as the basis for its motion to dismiss. That is, that since it carried compensation insurance on its employees, if plaintiff is its employee in the furtherance of a joint venture, plaintiff's recourse against it is under the compensation statutes and not in a common-law action.
The Iowa Workmen's Compensation Act is purely statutory and creates rights and liabilities not recognized at common law. When, and only when, a relationship of employer and employee exists is the act applicable. In enacting the act the legislature saw fit to define who is an employee within the purview thereof and one who wishes to avail himself, as an employee, of its provisions must come within the terms of the statute. Likewise, where one seeks to avoid common-law liability by recourse under the act, as the Society in this case is seeking to do, it must show the plaintiff to be an employee as it is defined in the act. Section 85.61(2), Code...
To continue reading
Request your trial
-
Price v. King
...upon an uncertain common law premise, while we are confined to the interpretation and application of statutory law. Bashford v. Slater, 252 Iowa 726, 731, 108 N.W.2d 474, and Heiliger v. City of Sheldon, 236 Iowa 146, 161, 18 N.W.2d 182. Furthermore it has on some occasions been either crit......
-
Mermigis v. Servicemaster Industries, Inc., 87-1557
...not employees of the general contractor entitled to coverage under the act. See Iowa Code § 85.61(3)(b) (1987); Bashford v. Slater, 252 Iowa 726, 731, 108 N.W.2d 474, 476 (1961); Farris v. General Growth Dev. Corp., 354 N.W.2d 251, 255-56 (Iowa App.1984). It is the defendant's burden to pro......
-
Prokop v. Frank's Plastering Co., 51583
...of the work or for whose benefit the work is performed. Usgaard v. Silver Crest Golf Club, Iowa, 127 N.W.2d 636, 637; Bashford v. Slater, 252 Iowa 726, 731, 108 N.W.2d 474; and Hjerleid v. State, 229 Iowa 818, 826-827, 295 N.W. 139, (2) above is admittedly Frank's responsibility. Robert Fra......
-
Iowa Beef Processors, Inc. v. Miller
...Act. There must be some meaningful connection between domicile and the employer-employee relationship. Cf. Bashford v. Slater, 252 Iowa 726, 731, 108 N.W.2d 474, 476 (1961) (Workers' Compensation Act dependent upon existence of employer-employee Our holding is consistent with workers' compe......