Bidwell Coal Co. v. Davidson
| Decision Date | 15 November 1919 |
| Docket Number | 33023 |
| Citation | 174 N.W. 592,187 Iowa 809 |
| Parties | BIDWELL COAL COMPANY, Appellant, v. FLORA DAVIDSON, Appellee |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--C. W. VERMILION Judge.
ACTION to recover compensation under the Workmen's Compensation Act. The commissioner refused to allow compensation, on the theory that the deceased was not the employee of the company at the time he received his injuries. On appeal to the district court, a different conclusion was reached. Appeal was taken to this court from the action of the district court, and this is--Affirmed.
Affirmed.
Stipp Perry, Bannister & Starzinger, for appellant.
John T Clarkson, Fred C. Huebner, and John W. Lewis, for appellee.
This case arises under the Workmen's Compensation Act. The defendant is the widow of one Ben Davidson. She claims that her husband was killed while in the employ of the plaintiff company. She claims, and the fact appears to be, that the plaintiff company is a corporation organized under the laws of this state, and engaged in the business of mining, selling, and shipping coal, and was so engaged on and prior to the date on which Ben Davidson sustained the injuries that caused his death. Plaintiff company has a large number of men employed in its mine, whose regular work is the mining of coal. The mining is not done by picks. Holes are drilled in the solid face. These holes are charged with powder and tamped, leaving a fuse extending from the mouth of the hole back to the charge. These fuses are lighted, and followed by a blast which loosens the coal, preparatory to being loaded in the mine car. After the blast, the coal is gathered and loaded into cars by the miners. We need not enter into any detailed statement of this work. The drilling of the holes, charging the same with powder, tamping and placing the fuse, and loading the coal are all necessary to the work of securing the coal for the market, for which the company agrees to pay a stipulated sum per ton. After the holes are prepared by the miner in charge of the work, they are examined by what is called a shot examiner, for the purpose of ascertaining whether they are of the proper depth, and properly located so that they can be discharged with safety, not only to the operator's property, but to the miners as well. The statute requires the company to furnish the examiner, and he must be qualified for that purpose. The shot may be fired by the miner in charge of the work, or by a shot firer selected for the purpose. After the holes have been prepared, and examined by the examiner, the miner or the shot firer lights the fuse, to the end that the coal may be blasted from the face of the mine.
It is conceded that the examiner is employed and paid by the company. He is under the control and direction of the company. The contention here is that the shot firer is not an employee of the company, but is selected and controlled and paid by the miners themselves, and that it is his duty, as firer, to do that part of the work which the miner himself might do, and which it was his duty to do, in the absence of a shot firer. It appears that, prior to the time Ben Davidson was killed, one Medford had been employed by this company as shot examiner, and had been designated by the miners as the proper person to act in the capacity of shot firer, and acted in both capacities, up to a certain date, when he left. Thereupon, with the knowledge and consent of both parties (the miners and the company), Ben Davidson took his place, and acted in the capacity of shot examiner and shot firer. We do not find in the record any evidence of any specific employment of Davidson as shot firer. He acted as shot examiner with the knowledge and consent of the company. It was the duty of the company to furnish a shot examiner. The company accepted him to perform that work and discharge that duty. As said before, though there was no specific evidence that Davidson was employed by anyone as shot firer, he discharged that duty with the full knowledge of the company, and was discharging that duty at the time he was killed, and, we take it, was killed while discharging the duty of shot firer. The work of shot examiner precedes that of the shot firer, and takes some time. After the work of examining is completed by the shot examiner, the shot firer follows, lighting each fuse as the same is prepared for that purpose. Where the same person acts as shot examiner and shot firer, he first proceeds with the examination, and, when that is completed, and after the miners have all left, lights the fuses to blast the coal from the solid. Davidson had only been working about two days when he was injured. He had been a miner before that time, and had worked in this same mine. He was discharging this double duty, and had completed his work as examiner before he began the firing. He had already fired some of the shots in the mine when the explosion occurred which caused his death.
The following stipulation was entered into between the parties, at the time of the submission of the cause to the Industrial Commissioner:
Under this stipulation, but one question remains open for consideration: Was Ben Davidson an employee of the plaintiff company at the time he received his injuries?
At the time he received his injuries, he was acting in the capacity of shot firer. The Exhibit A referred to in the stipulation is what is known as "The Des Moines Agreement," an agreement between the coal operators and coal miners, which contains, among other things, the following:
"Whenever a majority of miners in any mine so decide, they may employ a shot firer for said mine, and whenever satisfactory arrangements can be made between the miners and the shot examiner for the same person to act as shot examiner and shot firer, the same may be done."
As said before, the state law requires the coal company to employ a shot examiner, but it does not require them to employ a shot firer: at least, this duty is not imposed by the statute. It grew to be a custom in mines to select as shot firer the one appointed by the company as shot examiner. A shot examiner was required to have a certificate of qualification, and, we take it, it was thought to be safer for all that a qualified man should act in the dual capacity. But this was not imperative. The miners had a right, under this agreement, to designate and select any other person as shot firer, if they so wished.
While it does not appear affirmatively in this case that the miners selected Davidson, yet he was acting as shot firer with the knowledge and consent of the miners and the operators. He had succeeded to the work of Medford both as shot firer and shot examiner, and was discharging this double duty. It appears that the miners have not only the right to select the shot firer, but have the right, also, to discharge him. On complaint to the state inspector, however, the company may secure his removal, if he is shown not to be qualified or competent for the work. Davidson was paid by the company as shot examiner. He was paid as shot firer in the following way: It was assumed, and probably is true, that the duty of firing the shot rested on the miner, and was included in the work necessary to be done in mining the coal, for which the operator allowed so much per...
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