Bulman v. Sanitary Farm Dairies

• Decision Date: 15 November 1955
• Docket Number: No. 48760,48760
• Citation: 247 Iowa 488,73 N.W.2d 27
• Parties: Veronica BULMAN, Claimant, Appellant, v. SANITARY FARM DAIRIES, Employer, Iowa National Mutual Insurance Company, Insurance Carrier, Appellees.
• Court: Iowa Supreme Court

Page 27

73 N.W.2d 27

247 Iowa 488

Veronica BULMAN, Claimant, Appellant, v. SANITARY FARM DAIRIES, Employer, Iowa National Mutual Insurance Company, Insurance Carrier, Appellees.

No. 48760.

Supreme Court of Iowa.

Nov. 15, 1955.

Rehearing Denied Jan. 13, 1956.

John D. Randall, Cedar Rapids, and Winfield A. White, Marion, for appellant.

Elliott, Shuttleworth & Ingersoll, Cedar Rapids, for appellees.

SMITH, Justice.

Defendant Sanitary Farm Dairies of Cedar Rapids, Iowa, buys milk from farms for processing. It maintains six milk routes in the surrounding territory over which six regular haulers or drivers make daily trips collecting milk from the farmers along the routes. Each owns his own truck, starts from his own home in the morning and upon completion of his round delivers to the plant in Cedar Rapids the milk he has gathered and returns the truck to his home to be used for the next day's trip.

The regular routeman or hauler is paid by defendant company 'so much a hundred' for the milk he brings in, which amount is deducted from the farmers' check. Each is allowed one day off each week and the days off are so staggered that no two fall on the same day.

Claimant's husband, Lester J. Bulman, of Springville, Iowa, was, on and prior to November 28, 1952, under employment as relief truck driver to relieve the regular haulers on their respective days off. On each day he would go from his own home to the home of the regular driver whose turn it was to be relieved, get that man's truck, serve the route, deliver the milk he collected to the plant in Cedar Rapids and return the truck to the regular driver's home.

He of course had to furnish his own transportation between his own and the regular driver's home but by arrangement with the regular man he would put gas in his car to cover the going and returning trips and charge same to the truck he had used that day. That expense was thus borne by the regular hauler whose truck he had used, and not by the employer.

On November 28, 1952, Bulman relieved regular driver, Richard Sichra, whose route began and ended at his home in Belle Plaine, Iowa, approximately 36 miles west of Cedar Rapids, and was about 135 miles long with 21 or 22 stops at which to pick up milk. He started on his route from the Sichra home about 6:10 A.M. that day, unloaded his milk at the plant about 11:45 A.M., and returned the truck to the Sichra home and repossessed his own car about 1:30 or 2:00 P.M.

Several witnesses testify to his movements and conduct in Belle Plaine thereafter during the afternoon. He was visiting, drinking beer and one witness describes him thus as of about 5 o'clock: 'I noticed he had been drinking * * *. His tongue was thick and he couldn't bring his words out plain. When he turned around and went back I would say he was staggering along the street.'

There is much more along this line but it is pertinent here, probably, only as throwing light on Mr. Bulman's own concept of his relationship to his employment during the hours after returning the truck to the Sichra home.

This is material because the controversy grows out of disagreement over when his day of employment ended and whether the 'going and coming' rule is applicable, for Mr. Bulman was killed in an automobile collision that evening about 7:30 on the road from Belle Plaine to Cedar Rapids, presumably on his way home to Springville, which is some distance northeast of Cedar Rapids and beyond Marion.

Claimant contends his injury arose out of and in the course of his employment. The contention was denied by the Deputy Industrial Commissioner and by the Commissioner. On appeal to the district court the Commissioner's decision was affirmed. She has now appealed to this court.

I. Our statute defines compensable injuries as those 'arising out of and in the course of the employment.' Section 85.3, Iowa Code 1954, I.C.A. The phrase 'arising out of' is universally held to require causal relationship between the employment and the injury. It received little discussion here by either party.

Defendants denied decedent was injured in the 'course of his employment' and specially pleaded the proximate cause of his injuries was that he was under the influence of intoxicating liquor. The Commissioner held the evidence insufficient to sustain the special defense. We are of course statutorily foreclosed from reviewing that factual decision. Section 86.29 Iowa Code 1954, I.C.A.

The Commissioner based his denial of compensation squarely on a finding that the fatal injury was not sustained 'in the course of the employment,' the second statutory requirement. That is the principal issue here and it necessitates a determination as to the nature of decedent's employment. Did his day's work end when he returned the truck to the home of the regular driver (Sichra, in this case); or was he covered on his route home? Claimant argues there is no conflict of fact presented, that there was only a question of law, and that the Commissioner decided it erroneously. Defendants contend it was a question of fact, that the evidence supports the finding, and that the district court could not, under the statute, review it. Code, § 86.29, I.C.A. supra.

But whether the Commissioner's decision was based on a finding of fact, or was a legal conclusion upon evidence not in conflict, we think the Record shows without serious question that decedent's fatal injury did not arise in the course of his employment.

II. Ordinarily, the phrase 'in the course of the employment,' as used in our own and most workmen's compensation statutes, means within the period of the employment, at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incidental thereto. 58 Am.Jur., Workmen's Compensation § 212; Pace v. Appanoose Co., 184 Iowa 498, 503-504, 168 N.W. 916, 918, citing with evident approval In re Employers' Liability Assur. Corp. (In re McNicol; In re Patterson Wild & Co.), 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306: "An injury is received 'in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform"; and citing also Bryant v. Fissell, 84 N.J.L. 72 (86 A. 458): "the words 'in the course of,' [relate] to the time, place, and circumstances under which the accident takes place." We think that a fair statement of the basis of allowing compensation under our statute respecting the phrase in question.

The courts have quite generally adopted the so-called 'going and coming rule': that the hazards encountered by the employee in going to or returning from work...