Chenette v. Trustees of Iowa College, Grinnell, Iowa

• Decision Date: 27 August 1970
• Docket Number: No. 20110.,20110.
• Parties: Stephen L. CHENETTE, Appellant, v. TRUSTEES OF IOWA COLLEGE, GRINNELL, IOWA, d/b/a Grinnell College, and Grinnell College, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

431 F.2d 49 (1970)

Stephen L. CHENETTE, Appellant, v. TRUSTEES OF IOWA COLLEGE, GRINNELL, IOWA, d/b/a Grinnell College, and Grinnell College, Appellees.

No. 20110.

United States Court of Appeals, Eighth Circuit.

August 27, 1970.

Raul O. Salazar, of Sween & Salazar, Minneapolis, Minn., for appellant, Harlan Sween, Minneapolis, Minn., and James A. Jackson, of Lawyer, Lawyer & Ray, Des Moines, Iowa, filed brief of appellant.

H. Richard Smith, of Ahlers, Cooney, Dorweiler, Allbee & Haynie, Des Moines, Iowa, for appellees, and filed brief.

Before VAN OOSTERHOUT, Circuit Judge, JOHNSEN, Senior Circuit Judge, and HEANEY, Circuit Judge.

JOHNSEN, Senior Circuit Judge.

Stephen L. Chenette, a citizen of Minnesota, appeals from the granting of a summary judgment against him as plaintiff in a diversity suit brought in the District Court for the Southern District of Iowa for personal injury sustained by him at Grinnell College, in Grinnell, Iowa, from alleged negligence of the College.¹

Plaintiff was a musician employed by the Minnesota Orchestral Association, an insured employer under the Workmen's Compensation Act of Minnesota, 13 M.S. A. Ch. 16. The accident involved occurred when plaintiff walked into a glass-door at the front entrance to the Roberts Theater, one of the College's facilities, following the performance of a concert there by the Orchestral Association. Plaintiff was paid by his employer the amount of benefits provided by the Minnesota Workmen's Compensation Act for his injury as one "arising out of and in the course of his employment". M.S. A. § 176.021.

One of the defenses set up by the College was that plaintiff was precluded from maintaining the action by M.S.A. § 176.061, subd. 1, which provides that "Where an injury * * * for which compensation is payable occurs under circumstances which create a legal liability for damages on the part of a party other than the employer and at the time of such injury * * * that party was insured or self-insured in accordance with this chapter, the employe * * * may proceed either at law against that party to recover damages or against the employer for compensation, but not against both"; that plaintiff's receipt of compensation benefits under the Minnesota Workmen's Compensation Act from his employer constituted an election of remedies as to payment for his injury; and that such election was by the statutory subdivision made a bar to the maintaining by him of the present action.

Plaintiff countered in reply that his receipt of benefits under the Minnesota Workmen's Compensation Act could not operate as a bar under § 176.061, subd. 1, because the provisions of that subdivision were by subd. 4 of the section made to "apply only where the employer liable for compensation and the other party legally liable for damages are insured or self-insured and engaged in the due course of business, (a) in furtherance of a common enterprise, or (b) the accomplishment of the same or related purposes in operation on the premises where the injury was received at the time thereof"; and that the acts in which plaintiff had been engaged at the time of the accident did not come within the conditions of subd. 4 for the operation of subd. 1, as having involved a common enterprise or project between Grinnell College and plaintiff's employer or, if a common enterprise or project were involved, as having constituted a common activity thereunder by him and employees of Grinnell College.

A stipulation was entered into between the parties as to some of the facts underlying the activities involved and the relationships existing at the time and place of the accident. The facts which were thus given stipulational establishment were that the injury to plaintiff had occurred at the Roberts Theater on the College campus; that plaintiff, as a musician employed by the Minnesota Orchestral Association, had just prior to the accident "participated in a concert of the Minnesota Orchestral Association and the defendant", held at the theater; that among the employees of the Orchestral Association for the event was a regular stage manager, who had the duty to oversee the setting up and taking down of music stands and chairs for the orchestral and "the unloading and loading of the musicians' instruments from the bus in which the Minnesota Orchestral Association travelled"; that two employees of Grinnell College "who were regular custodians at the theater * * worked under the stage manager's supervision and direction" in getting these incidents accomplished; that as to the loading and unloading of the musical instruments, however, "it was optional with members of the Minnesota Orchestral Association as to whether they carry their own instruments to and from the concert or whether this was done by, or under the direction of, the stage manager"; that at the time of the accident "plaintiff had just changed clothes in the basement of the theater following the concert and had carried his suit and instrument up the stairs and out the rear door of the theater", had loaded them onto the bus "and was returning to reenter the theater for the purpose of finding a water fountain to get a drink of water"; that plaintiff went to the front entrance of the theater to enter the lobby area and "in the process of entering came in contact with a glass door" from which his injury resulted; and that "at this same time the defendants' two custodial employees were carrying instruments of the members of the Minnesota Orchestral Association from the stage of the theater to the same bus where plaintiff had loaded his suit and instrument and were loading such instruments thereon".

Grinnell College regarded these partial facts as establishing as a matter of law that the situation had been one of common enterprise or project between it and the Minnesota Orchestral Association in the holding of the concert and in the performance of the things being done at the time and place of the accident; and that the loading by plaintiff of his own instrument onto the bus thus constituted a common activity with the College's employees in such enterprise or project of the two employers. It was upon this basis that Grinnell College's motion for summary judgment was predicated — that the facts admitted by the stipulation required it to be held that plaintiff's suit against the College came within the preclusion or bar of subd. 1 and subd. 4 of § 176.061.

It will be noted that we have characterized the stipulation as setting out some of the facts, or partial facts as to the situation. Thus the nature and scope of the arrangement or relationship involved between Grinnell College and the Orchestral Association as to the holding of the concert cannot be said to be shown. The stipulation does contain the expression "a concert of the Minnesota Orchestral Association and the defendants", and from this appellee's brief argues that "It is clear from the stipulation that Chenette's employer and the College joined together to present the concert".

Granting that the expression implies that some form of arrangement and scope of relationship must have existed between the parties as to the concert, we do not...