Bever v. Collins, 47884

• Decision Date: 13 November 1951
• Docket Number: No. 47884,47884
• Parties: BEVER v. COLLINS.
• Court: Iowa Supreme Court

Page 877

49 N.W.2d 877

242 Iowa 1192

BEVER v. COLLINS.

No. 47884.

Supreme Court of Iowa.

Nov. 13, 1951.

Larson & Carr, of Charles City, for appellant.

William W. Sullivan and Schaetzle, Swift, Austin & Stewart, all of Des Moines, for appellee.

MULRONEY, Justice.

Richard O. Bever, an employee of Dean Collins, was instantly killed in the course of his employment on May 21, 1942. On October 6, 1948 Richard Bever's widow filed with the industrial commissioner an application for reopening under Sec. 86.34, Code 1946, I.C.A. and by amendment filed January 3, 1949 an original application for arbitration. The employer, Collins, filed a special appearance which the deputy commissioner overruled and hearing was had resulting in a finding by the deputy in favor of the applicant on the reopening portion of her application. The employer appealed direct to the district court where the deputy's decision was reversed and the applicant appeals.

There is no serious dispute in the testimony. Richard Bever was a truck driver for Collins and he was instantly killed in a motor vehicle accident. Soon after the accident, Collins, who had no workmen's compensation insurance, interviewed the industrial commissioner and learned from him that he was liable for compensation to Mr. Bever's widow at the rate of 60% of Richard's average weekly wages ($25.00 a week) for 300 weeks. The Collinses were friends of the Bevers and Mr. Collins was sincerely disturbed by the tragic death of his employee and friend. Mr. Collins came back from the visit with the commissioner and admitted to Mrs. Bever that he was liable to her under the workmen's compensation law.

Mrs. Bever testified: 'At that time he (Collins) told me that he knew that he was in the wrong; that he didn't have adequate insurance on my husband and that I could sue him and he knew that I could sue him but that he didn't have anything and that he would agree that he would pay as he financially could if we would leave it that way and he would help me at any time that I needed help.'

The following excerpt from Mr. Collins' testimony is his recollection of what occurred:

'Q. Now, some time after the accident you say you came to the office of the then Industrial Commissioner and had a talk with him about your liability, did you not? A. Yes, sir.

'Q. Was that before November, 1942? A. Yes, sir, it was soon after the accident.

'Q. From that time on you knew that you had a liability to the dependents of Richard O. Bever on account of his fatal injury and death, did you not? A. Yes, I did.

'Q. And isn't it a fact that in conversation with Mrs. Bever and with members of her family that you conceded and admitted that liability? A. Yes.

'Q. And isn't it a fact, Mr. Collins, that you told Mrs. Bever that if she didn't sue that you would pay as fast as you could? A. I don't remember the exact words to that effect. I told her I would help her out all I could.

'Q. You told her that while you were getting this paid that if she found herself in distress to call upon you and would do the best you could for her or words to that effect? A. Yes, sir.

'Q. And you were rather sincerely disturbed by this tragic death, were you not, and sincerely felt responsibility on account of it? A. Yes.

'Q. I believe it is true that you and your wife and Mrs. Bever and her late husband were very good friends; is that not right? A. Yes, sir.

'Q. You had been for some years before he was employed by you? A. Yes, sir.

'Q. Now, instead of you asking her to sue at that time, isn't it a fact that you told her that you didn't have anything then and it wouldn't do her any good to sue but that if she would wait and let you pay it out as you could you would do so; isn't that the state of the condition at that time and isn't that what you said? A. I don't remember any such statement as that.

'Q. Do you remember of telling her that you didn't have anything just then? A. I spent all I had at that time.

'Q. So you didn't have anything left that could be reached anyhow and wasn't there talk, Mr. Collins, at that time that you also had a family growing up too and that if this thing was pursued in a cold-blooded way that it might leave them in distress too? A. I don't remember; it could be.

'Q. It could be? A. Yes.

'Q. You did do--at least the first few years, the first four years afterwards--you did about as much as you could, is that not right? A. Yes, sir.'

The record shows without dispute that Collins paid the furneral bill in the sum of $409.24 and that he gave Mrs. Bever $200.00 in January, 1946 and $100.00 in May, 1948 and other miscellaneous smaller checks and some canned goods. The total credit would be $895.00 with $150.00 of this sum chargeable to the burial expense obligation. There is...