Brewer v. Central Const. Co.

• Decision Date: 13 June 1950
• Docket Number: No. 47660,47660
• Parties: BREWER et al. v. CENTRAL CONSTRUCTION CO. et al.
• Court: Iowa Supreme Court

Page 131

43 N.W.2d 131

241 Iowa 799

BREWER et al. v. CENTRAL CONSTRUCTION CO. et al.

No. 47660.

Supreme Court of Iowa.

June 13, 1950.

Miller, Huebner & Miller, of Des Moines, for appellants.

Herrick & Langdon, of Des Moines, for appellees.

GARFIELD, Justice.

Defendants contend that at the time of his fatal injury Brewer was not a 'workman' or 'employee' within the meaning of section 85.61, paragraph 2, Code, 1946, I.C.A., because it appears without conflict he was (1) 'A person holding an official position, or standing in a representative capacity of the employer,' as provided by paragraph 3d (par. 3c, § 85.61, Code, 1950, I.C.A.) of said section and (2) a joint or co-adventurer with defendant Central Construction Company in doing paving and surfacing. The deputy industrial commissioner as sole arbitrator, the commissioner upon review and the district court upon appeal held against defendants upon both propositions.

I. If there is sufficient competent evidence--or, as we have frequently said, substantial evidence--to support the commissioner's finding that Brewer was an employee within the purview of section 85.61, then such finding is conclusive. Unless it appears without conflict, as defendants contend, that decedent held an official position or stood in a representative capacity or was a joint or co-adventurer, the award must be affirmed. See Code section 86.29; Taylor v. Horning, 240 Iowa 888, 38 N.W.2d 105, 106, 107, and citations; Alm v. Morris Barick Cattle Co., 240 Iowa ----, 38 N.W.2d 161, 162; Gardner v. Trustees of Main St. M. E. Church, 217 Iowa 1390, 1401, 250 N.W. 740.

In passing on the sufficiency of the evidence to support the award we must consider it in the light most favorable to claimants. Pohler v. T. W. Snow Constr. Co., 239 Iowa 1018, 1021, 33 N.W.2d 416, 418, and citations; Alm v. Morris Barick Cattle Co., supra. When so considered, there is substantial evidence in support of the award.

II. Defendant Central Construction Co. is a partnership composed of four individuals. Its principal place of business is Indianola. It was engaged in highway grading and a small amount of ditching and paving. Decedent was an engineer formerly with the Iowa highway commission and then with a cement company. He was killed September 5, 1948. He went to work for defendant company on March 1, 1948, under a written agreement which is important in determining his status.

The agreement recites that the company 'desires help and assistance in the management of the Concrete Division' to do paving and surfacing for one year; 'First party (company) will retain the services of second party (Brewer) to manage or supervise the construction of all paving * * * projects which are contracted for * * * by first party'; if more than one project is under construction at the same time the company will employ such foremen or superintendents as may be needed to work under Brewer's direction; Brewer agrees to serve the company to the best of his ability on any other types of work not under his supervision when it is to the best interests of the company; Brewer is to receive 20 per cent of the net profits from all projects managed or supervised by him during the year or $5200, whichever is greater.

Paragraph 6 of the agreement provides, 'Final decisions as to all policy matters, determination of which jobs will be contracted for, purchase of major equipment and * * * subcontracts wil be made by first party (company).'

Under this agreement Brewer supervised four paving jobs including one at Osceola in progress when he was killed. The total contract price of the four jobs was about $325,000 of which the Osceola job represented slightly more than half. It does not appear what part of that job was completed when Brewer was killed.

Brewer worked only in the paving and surfacing branch of the company's business. He used for transportation a pickup truck which belonged to the company with its name painted on the side. Burkey, a partner in defendant company, testified the company approved Brewer's use of the truck and about everything he did. Brewer selected and the company paid for equipment costing about $75,000 for use in paving. Brewer prepared bids on paving jobs and submitted them to a partner for approval. Burkey, who signed all company checks, would write the checks to accompany the bids and take them to the state highway commission which awarded the contracts. Brewer signed no contracts with the highway commission and was never authorized to write checks.

Brewer selected the foremen and other employees on paving jobs, fixed their wages, promoted and discharged help. He ordered cement and other materials. At times he rented some additional equipment. Brewer made some arrangements with subcontractors without first procuring the partners' approval. Burkey testified, 'He might tell us about it afterwards or I might have drawn up an agreement afterwards.' An employee who had been working at paving by the hour said Brewer asked him why he didn't work for the company by the week and he (Brewer) said 'I will go into the office and see what I can do for you.' After Brewer returned from the office it was agreed the employee would work by the week.

Time cards were kept by the employees, approved by foremen, then by Brewer who turned them in to the company office at Indianola where all records were kept and checks issued. On the night of Brewer's fatal injury in a collision between the company's pickup and another truck, Brewer had worked until about 10 on time cards after working until about 8 finishing with a trowel a driveway in Osceola.

It is not shown that the written agreement (exhibit A) was abrogated or rescinded prior to Brewer's death. There is some evidence of some deviations from it. Burkey testified, 'We deviated from paragraph 6 (quoted above) of exhibit A to some extent, I would think.'

III. It certainly does not appear without conflict that Brewer held an official position with defendant company. Nor does it so appear that he stood 'in a representative capacity of the employer.' In a sense all agents are representatives of their employer. Standing 'in a representative capacity' as used in section 85.61, 3d (3c, Code, 1950, I.C.A.) must mean something more than acting as the ordinary agent of an employer. Obviously this statute was not designed to exclude all representatives of an employer from the benefits of the compensation act but only those entrusted with such broad executive powers as to represent or stand in the place of the employer. See Dewey v. National Tank Maintenance Corp., 233 Iowa 58, 63, 8 N.W.2d 593, 596; Danico v. Davenport Chamber of Commerce, 232 Iowa 318, 327, 5 N.W.2d 619, 624.

While Brewer was vested with considerable discretion in the particular field of his employment there is evidence of definite limitations, both under the terms of the agreement and in practice, upon his right to represent defendant company. As stated, the agreement reserves to the company the right to make final decisions as to all policy matters, determination of what jobs to contract for, purchase of major equipment and subcontracts. That there may have been occasional deviations 'to some extent' from the terms of the agreement is insufficient to show without conflict that Brewer stood in a representative capacity within the meaning of section 85.61, 3d.

We have referred to evidence that on one occasion decedent apparently procured express authority from the company before changing the terms of employment of a workman and that Brewer's use of the company's pickup truck and other acts were approved by it. Brewer had no authority to disburse the company's funds and never did so. In fact he had no authority to represent the company in any respect except in accordance with the terms of the agreement.

That the partner Mr. Burkey as a witness for claimants expressed the opinion there were no limitations upon Brewer does not entitle defendants to a reversal in view of the terms of the agreement and evidence that in practice Brewer exercised only limited authority. See Burch Mfg. Co. v. McKee, 231 Iowa 730, 733, 2 N.W.2d 98, 100; Hatheway v. Hanson, 230 Iowa 386, 396, 297 N.W. 824, 828; Brunskill v. Wallace, 224 Iowa 629, 631, 276 N.W. 598; Johnson v. Warrington, 213 Iowa 1216, 1218, 240 N.W. 668.

In support of their contention that decedent stood in a representative capacity defendants rely upon Kutil v. Floyd Valley Mfg. Co., 205 Iowa 967, 218 N.W. 613; Hamilton v. J. Le Roy Farmer Canning Co., 220 Iowa 25, 261 N.W. 506; Pattee v. Fullerton Lumber Co., 220 Iowa 1181, 263 N.W. 839. They are not controlling. Those three decision are explained in Danico v. Davenport Chamber of Commerce, supra, 232 Iowa 318, 5 N.W.2d 619. The Kutil and Hamilton cases are discussed in Dewey v. National Tank Maintenance Corp., supra, 233 Iowa 58, 8 N.W.2d 593. See also Whitney v. Rural Independent School Dist., 232 Iowa 61, 72, 4 N.W.2d 394, 399, 140 A.L.R. 1376, 1382.

The Kutil case, supra, involved fatal injury to the president, who was also an organizer and board member, of defendant corporation. The commissioner found he was 'a person holding an official position' within section 85.61, 3d. In all three of these decisions relied upon by defendants compensation was denied by the deputy commissioner, the commissioner and the district court and it was necessary for us to decide only whether there was sufficient competent evidence to warrant the decision. In the Hamilton case, supra, which seems to be defendants' chief reliance, we said, page 27 of 220 Iowa, page 508 of 261 N.W.: 'We have here a record which...