Casey v. Hansen

• Decision Date: 11 February 1947
• Docket Number: 46964.
• Citation: Casey v. Hansen, 238 Iowa 62, 26 N.W.2d 50 (Iowa 1947)
• Parties: CASEY v. HANSEN.
• Court: Iowa Supreme Court

26 N.W.2d 50

238 Iowa 62

CASEY v. HANSEN.

No. 46964.

Supreme Court of Iowa

February 11, 1947

[Copyrighted Material Omitted]

Hansen and Wheatcraft, of Des Moines, for appellant.

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

GARFIELD Justice.

Defendant-employer, Harry Hansen, had not insured his liability as provided by section 87.1(references are to Code of 1946), nor had he been relieved from so doing pursuant to section 87.11.When plaintiff's intestate was injured defendant had more than five persons in hazardous employment.Plaintiff-administratrix therefore elected under sections 87.1and87.21 to sue for damages at common law as modified by Code chapter 85 of the workmen's compensation law.Defendant's status is the same as if he had rejected the compensation act.Sections 87.1and87.21;Martin v. Chase, 194 Iowa 407, 412, 189 N.W. 958.

Defendant owns and operates several buildings in Des Moines including the Dr. Pepper Building, the Hanwood apartments and the Harlan hotel, situated within a block and a half on Locust street.Two of defendant's brothers are equitable owners of the Harlan hotel and assist in the upkeep and management of the three named properties and others.Decedent John Casey, a common laborer, had worked for defendant since the spring of 1944 at $100 a month.He did certain, janitor work at the Hanwood apartments and Harlan hotel and numerous odd jobs on different properties owned by defendant.

There is evidence that on June 26, 1945, Casey fell from a scaffold in the Dr. Repper building, which was under repair from damage by fire, and that he died the following day from injuries sustained in the fall.His widow as administratrix brought this action to recover for his death.A verdict was directed for defendant on the grounds (1)plaintiff failed to prove an injury arising out of and in the course of employment and (2) as a matter of law there was no negligence on defendant's part.The court indicated he felt the first ground was the stronger of the two.Plaintiff has appealed from the resulting judgment against her.

I.The burden rested on plaintiff to prove by a preponderance of evidence that Casey's death resulted from an injury arising out of and in the course of his employment.Gay v. Hocking Coal Co., 184 Iowa 949, 960, 169 N.W. 360;Mitchell v. Swanwood Coal Co., 182 Iowa 1001, 1006, 166 N.W. 391.The term 'arising out of' implies some causal relation between the employment and the injury; 'in the course of' means during the period of employment and at a place where the employee may be performing the duties of his employment or doing something incident thereto.Otto v. Independent School Dist., Iowa, 23 N.W.2d 915, 916, and authorities cited.

In determining whether the motion to direct was erroneously sustained of course we must consider the evidence in the light most favorable to plaintiff.Mitchell v. Des Moines Coal Co., 182 Iowa 1076, 1078, 165 N.W. 113;Mitchell v. Phillips Mining Co., 181 Iowa 600, 612, 165 N.W. 108.When this is done we think there is substantial evidence that Casey's death resulted from an injury arising out of and in the course of his employment.We will refer to some of the testimony.

Decedent's son worked for defendant some in the spring of 1944 and the spring of 1945.He testified:

'His (Casey's) regular work was to bale paper and take out the garbage at the Hanwood apartments and Harlan hotel.However this did not take his full time.If he had not been instructed what to do in the morning he took out the paper and baled it, took out the garbage and then he would go find one of the Hansens, Jack or Harry or any of them and find out what he was going to do next. * * *

'He knocked plaster off the side walls and ceiling at the Hanwood apartments, Harlan hotel and East 5th street.He generally stood on a scaffold to knock the plaster off the ceiling. * * *

'He helped repair the roof of the Dr. Pepper building in 1945. * * * must have been working repairing the roof a couple of days.'

Trent, a plasterer, worked in the Dr. Pepper building the week before Casey was hurt.He said he saw decedent come to the building at times.'He was generally there when I got there.When 8 o'clock came Casey went to the hotel or Hanwood I suppose to bale paper and take down garbage.At times I saw Casey do work in the Dr. Pepper building.One day he worked with me, he pulled up mortar for me.He worked all day that day.* * *

'Mr. Casey would do one kind of work then another, he was sort of an odd-job man.'

Peterson, a carpenter who worked in the Dr. Pepper building since March, testified:

'I saw Casey in the morning at the Pepper building several times before we started work.When work time came he would do whatever work he had to do.Most of the time he would go to the Harlan, take care of the garbage and I don't know any more after that until I saw him off and on around the jobs.I saw Casey working at the Dr. Pepper building two or three times, he cleaned up, picked up plaster.He also helped carry pipes and lumber around and straighten up things at the Pepper building.'

Harlan C.(Jack) Hansen, defendant's brother, said: 'He(Casey) did general labor for a day or two at the Dr. Pepper building.I had him take down loose plaster.I served there as foreman.We had two scaffolds in the building.He worked on both knocking down plaster.'

On the morning Casey was injured he arrived at the Dr. Pepper building around 7:30.Trent, Peterson, and Estelle were also there.Defendant arrived by 7:45 and told Casey to mix a batch of mortar.Casey replied, 'I can't do it.I am not able.My back won't stand it.'According to defendant, 'Then I told him, 'You better go on with your regular work up to the Harlan and Hanwood * * * of taking care of the garbage and baling paper in those places.''

The manager of the Harlan testified Casey came there about 8 a. m. and took care of the garbage and papers.The manager of the Hanwood said: 'He(Casey) came to the Hanwood about 10 o'clock.The garbage and paper had already been taken down by my brother.I told Casey the work was done and he said he was glad of it.He was not feeling well.Harry Hansen came.I told him Casey was sick and the work was done and Mr. Hansen said for him to go over to the Harlan hotel and do the work there if it was not done over there and to do what he felt like doing at the Harlan.'Defendant testified he'didn't think much of it' when the Hanwood manager told him Casey was not feeling well 'as that was chronic with him.'

During this same morning Harlan C. Hansen was 'knocking down' plaster from the ceiling of the Dr. Pepper building.He was standing on a scaffold Peterson had built of two trestles or 'horses' about 9 feet high, one at each end, with a floor of 2X12-inch boards, 12 feet long, on top of the trestles.A short time after Casey had been to the Harlan and Hanwood he fell from this scaffold.Apparently no one saw him fall but Harlan C. Hansen heard the thud and he, Trent and Peterson saw Casey, seriously injured, unable to speak, on the cement floor near the scaffold.Immediately before Casey fell Harlan had knocked down from the ceiling 8 or 9 square feet of plaster.Casey was removed to a hospital where he did the next day as a result of his injury.

Trent, who was on another scaffold, said: 'I heard some noise, but I think it was plastering coming down.I don't know whether he fell or not.I heard a noise like something heavy falling, a crash like somebody falling or some boards.I looked and saw Casey lying there.I don't remember whether there were any boards down from the scaffold.'

When Casey's son learned of the injury he and his brother-in-law interviewed defendant.This is the son's testimony, corroborated by the brother-in-law:

'I asked him how my dad was hurt and he said he fell off a scaffold.I said, 'Well, what kind of work was he doing?'He said, 'I met him there at the Dr. Pepper building that morning and told him to go to his regular job taking out the paper and garbage and then when he got that done to come back there to work.'

'Q.Was there anything else?A.Yes, I asked him if he was carrying any compensation insurance and he said no, he didn't, and my brother-in-law asked him what he intended to do about it then and he would just let it ride for a few days to see how things turned out.'

Defendant admitted having talked to the son and his brother-in-law but denied their version of the conversation.There are also denials of some other testimony above referred to.We need not consider them since conflicts in the evidence were of course for the jury to resolve.

From the testimony the conclusion is warranted defendant directed Casey to take out the paper and garbage at the Harlan and Hanwood and then return to the Dr. Pepper building to work and that Casey did as directed, insofar as such duties had not already been performed.The nature of the work Casey had been doing lends probability to this conclusion.While it is not shown by direct evidence precisely what Casey was doing on the scaffold at the time he fell it is reasonably probable he had gone there either to work or to receive directions from defendant or Harlan C. Hansen, the foreman, as to what he should next do.It is scarcely probable he had gone upon the scaffold for his own benefit or enjoyment nor for any other purpose than to benefit his employer.Harlan C. Hansen testified, 'You couldn't tell from the floor whether all the loose plaster had been knocked down.You would have to get on the scaffold to determine that.'

In Bushing v Iowa Ry. & LightCo., 208 lowa 1010, 1013, 226 N.W. 719, 721, an award was affirmed even though we said: 'In what manner Bushing got into the...