Bushing v. Iowa Ry. & Light Co.

• Decision Date: 24 September 1929
• Docket Number: No. 39785.,39785.
• Citation: 226 N.W. 719,208 Iowa 1010
• Court: Iowa Supreme Court
• Parties: BUSHING v. IOWA RY. & LIGHT CO.

208 Iowa 1010

226 N.W. 719

BUSHING

v.IOWA RY. & LIGHT CO.

No. 39785.

Supreme Court of Iowa.

Sept. 24, 1929.

Appeal from District Court, Marshall County; B. F. Cummings, Judge.

This case comes on appeal from a judgment and decree rendered by the Marshall County District Court affirming an order, finding, and decision of the Iowa Industrial Commissioner in favor of the plaintiff. Affirmed.

Albert, C. J., and Faville and Grimm, JJ., dissenting.E. N. Farber, of Marshalltown, and Donnelly & Lynch, of Cedar Rapids, for appellant.

Ray P. Scott, of Marshalltown, for appellee.

DE GRAFF, J.

There is little, if any, conflict in the evidence. On December 9, 1917, and for some time prior thereto, August Bushing, deceased, husband of the appellee, Martha Bushing, was employed by the appellant, Iowa Railway & Light Company, as a fireman in the company's power plant located at Marshalltown, Iowa. His duties were the general and ordinary duties of a fireman and also in disposing of ashes and the shoveling of coal in the yard. The furnaces were fed by mechanical stokers. The employee's working hours were from 1 o'clock in the afternoon until 11 o'clock in the evening. Both employer and employee were under the Workmen's Compensation Law.

There were four boilers in the plant placed in a row facing south, and the boiler tended by the deceased was the one to the extreme west side of the building and located about 50 feet from the east wall. On the east side of the boiler room there is a balcony or gallery which is about 10 or 12 feet above the floor of the boiler room. On this balcony was a water heater, used for heating the water before it is fed into the boilers, steam pipes, and a water meter. An iron ladder led from the boiler room floor to the balcony, and at a little distance from this ladder a wooden ladder led from the balcony to the top of the water heater. The water meter was located directly above the heater and at the top of this second ladder. The engineer made daily readings of the meter and kept record thereof. In the east wall and at a height of about 7 1/2 feet from the balcony floor were several windows, one of them directly behind and above the water heater, and another 3 or 3 1/2 feet to the north. These windows were used as ventilators and could be opened or closed by means of chains hanging from the tilting sash to within reaching distance from the balcony floor. Above the water heater were several water and steam pipes running horizontally north and south and some other pipes extending vertically. The water heater stood about a foot or more from the east wall. Along the wall and extending from the north to the bottom of the window located a short distance north of the water heater was an iron pipe about 1 1/2 inches in diameter and used as a conduit for electric wires leading to a transformer outside of the east wall. This pipe was about 14 inches below the level of a 3-inch water pipe, and running alongside of the latter pipe was a 4-inch pipe but a few inches above the level of the 3-inch pipe. Some pieces of planks had been left by workmen resting on the top of the heater and the window ledge directly behind the heater. The record shows that but little attention was paid to the opening and closing of these windows and generally they remained partly open. The chain attached to the window north of the heater hung down in such a manner that it could come in contact with the conduit inclosing the electric wires. These wires carried a voltage of about 2,200 volts.

On the afternoon of December 8, 1917, Bushing went to his work at the usual time and put in about two hours shoveling coal in the yard. He then engaged in putting his boiler in shape for the evening load, which commenced between 6 and 7 o'clock. Some time after 4 o'clock of that day he was missed. The last work that he did before he was missed was to pull the ashes from his boiler and wheel and dump them into the basement. A search was instituted, but he was not found until the following morning about 7:30 a. m. His body was found on top of the two pipes above the water heater with his shoulder and head resting on the plank extending from the top of the heater to the window ledge. His hands were crossed, his right leg was crossed over the left, and his left leg rested on the pipes. His hat was over his eyes and down to a line with his nose. His body was lying in a position of rest and gave no evidence of any struggle. In what manner Bushing got into the position in which he was found and what he was doing at such a place is not shown by the record.

The finding of the Iowa Industrial Commissioner on this point is as follows: “Just why this workman was on the balcony where his body was found, is not shown by the record and is evidently beyond human knowledge.” There was no testimony given before the Iowa Industrial Commissioner that Bushing had ever been on the balcony before, and there was no apparatus located there which in any way connected with his work of firing the boiler. There were no marks upon his body indicating that he had fallen into the position in which he was found. The only external evidences of injury existing were burns on the palm, forefinger, and thumb of the left hand. These burns were not extensive in area, but appeared to have been caused by extreme heat. After the discovery of the body, tests were made for a short circuit in the electric wires on the balcony. A short circuit was found in the wiring inside the iron conduit which ended at the south end of the window to the north of the water heater, and the conduit was charged with the current carried by the wires inside of it. The testimony of the physicians and surgeons who performed an autopsy on the body was strongly to the point that Bushing had died from an electric shock. A claim for compensation was made by the appellee, the surviving spouse of the deceased employee. The employer denied liability and the matter was referred to an arbitration committee, as provided by the Workmen's Compensation Law. The arbitration committee found that the death occurred at a place the workman's employment did not require him to be, and that he was apparently doing something that he was not employed, authorized, or expected to do, and therefore denied the surviving spouse any compensation under the terms of the law.

On June 24, 1918, a petition for review was filed, but due to the failure of the petitioner to furnish a transcript of the evidence before the arbitration committee, the hearing on review was delayed until August 9, 1928. On August 28, 1928, the Iowa Industrial Commissioner filed his order, findings, and decision wherein the decision of the arbitration committee was reversed, and the claimant (appellee here) was granted statutory compensation for a period of 300 weeks, together with $100 for burial expenses. The employer, Iowa Railway & Light Company, appealed to the district court of Marshall county, and on October 10, 1928, the cause came on for trial upon the transcript as certified and filed by the Iowa Industrial Commissioner. Thereafter, on the 8th day of December, 1928, the district court of Marshall county, Iowa, rendered and entered of record a judgment and decree which held that August Bushing came to his death on December 8, 1917, by electrocution, while in the employ of the Iowa Railway & Light Company, and that the said injury and death arose out of and in the course of his employment, and awarded the claimant compensation to the amount of $2,595 and burial costs of $100. It was further ordered that the defendant be given credit for the sum of $135 which it had voluntarily paid in connection with the burial of the deceased workman.

[1] The case now comes to this court for final decision. The appellant relies upon seven points for reversal, and the appellee upon but one. To simplify matters we will deal first with the appellee's count, which is as follows: The court erred in failing to allow the claimant interest on each weekly payment of $8.65 from and after January 1, 1918. The record amply shows that the delay of about ten years in bringing the claim before the Iowa Industrial Commissioner was due to the failure of the claimant to perfect her petition for review of the decision of the arbitration committee, and therefore the employer-appellant should not be penalized for the delay by charging him with interest on the deferred payments.

We will now set out the errors relied upon by the appellant:

(1) The court erred in finding that the injury and death of August Bushing arose out of and in the course of his employment, as there was no evidence in the record sustaining such finding.

(2) The record conclusively shows that there was no part of Bushing's work requiring his presence at the place where his body was found, and there being no evidence raising an inference or presumption that his death arose out of his employment, the court erred in its finding that the death of said decedent arose out of his employment.

(3) There being no evidence in the record supporting a legitimate inference as to what the deceased workman was doing away from his place of duty, and no evidence that at the time he met his death he was engaged in any duty connected with his employment, the finding of the trial court that his injury and death arose in the course of his employment is wholly unsustained by the evidence.

(4) The most that is shown in the record is that the body of the decedent was found in the defendant's plant at a place wholly disconnected and distant from the decedent's place of work, and where he had no known duty to perform.

(5) The Industrial Commissioner in his decision made no findings of fact upon which conclusion could be based that the death occurred in the course of decedent's employment...