Daggett v. Nebraska-Eastern Exp., Inc., NEBRASKA-EASTERN

• Court: United States State Supreme Court of Iowa
• Citation: 252 Iowa 341,107 N.W.2d 102
• Docket Number: NEBRASKA-EASTERN,No. 50158,50158
• Parties: Beulah M. DAGGETT, Claimant-Appellant, v.EXPRESS, INC., Employer-Appellee, United States Fidelity and Guaranty Co., Insurance Carrier-Appellee.
• Decision Date: 11 January 1961

Page 102

107 N.W.2d 102 252 Iowa 341 Beulah M. DAGGETT, Claimant-Appellant,
v.
NEBRASKA-EASTERN EXPRESS, INC., Employer-Appellee,
United States Fidelity and Guaranty Co., Insurance Carrier-Appellee. No. 50158. Supreme Court of Iowa. Jan. 11, 1961.

[252 Iowa 343]

Page 103

Porter & Heithoff, and James A. Pratt, Council Bluffs, for claimant-appellant.

Page 104

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellees.

GARFIELD, Chief Justice.

Beulah M. Daggett filed with the Iowa industrial commissioner her petition for arbitration claiming workmen's compensation for the death of her husband from his alleged employer Nebraska-Eastern Express, Inc., and its compensation insurance carrier. The petition was heard by deputy commissioner Warren L. Huebner who awarded compensation. Upon Nebraska-Eastern's petition for review, the award was affirmed by the commissioner, but on its appeal to the district court the award was annulled. From this final court order claimant has appealed to us.

The sole disputed issue before the deputy commissioner and commissioner was whether decedent was an employee of Nebraska-Eastern or an independent contractor. Both officials found he was an employee. Claimant's petition for arbitration alleges decedent was fatally injured in the course of his employment for Nebraska-Eastern. The latter's answer denies decedent was an employee and received fatal injury in the course of any employment. It further alleges decedent was an independent contractor who operated his own business and was not under the direction or control of Nebraska-Eastern.

I. The arbitration and review decisions both recite that defendants failed to fulfill the burden of proving by a preponderance of the evidence that decedent, when fatally injured, was an independent contractor. The district court held it was error to place this burden on defendants, this could have been the controlling factor in those decisions and, although there is [252 Iowa 344] some authority to the contrary, claimant must show by a preponderance of the evidence that decedent had entered into a contract of service as well as the negative fact he was not an independent contractor. On this point of burden of proof we think the commissioner and his deputy were not in error. The question is not an open one under our procedents.

Section 85.61, paragraph 2, Code, 1958, I.C.A., provides an employee means a person who has entered into the employment of, or works under a contract of service for, an employer 'except as hereinafter specified.' Paragraph 3 states the following persons shall not be deemed employees:

'a. A person whose employment is purely casual and not for the purpose of the employer's trade or business.

'b. An independent contractor.

'c. A person holding an official position, or standing in a representative capacity of the employer, * * *.'

Paragraph 5 of section 85.61 provides the word 'injury' shall, (b) 'not include injury caused by the willful act of a third person directed against an employee for reasons personal to such employee, or because of his employment.'

Everts v. Jorgensen, 227 Iowa 818, 823, 289 N.W. 11, 13, turned on the point of who had the burden of proof on this last quoted exception. In answer to the employers' contention that the burden to negative this and other suatutory exceptions rested on claimant we held: 'The rule propounded by appellants would require every claimant, in order to recover, to negative these exceptions by affirmative proof that his injury does not fall within one or more of the exceptions. We think this contention is contrary to the generally accepted rule that he who relies upon an exception to a general rule has the burden of establishing the facts which bring the matter within the exception.'

The Everts opinion goes on to point out (227 Iowa at pages 825-826, 289 N.W. at page 15) that the employers, as was done here, apparently recognized the defense as an exception to the general rule by making an affirmative averment in relation thereto 'and it would seem only logical that, in order

Page 105

to prevail in this defense, the burden should rest upon those who affirmed it, as a fact, to be true.'

[252 Iowa 345] Reddick v. Grand Union Tea Co., 230 Iowa 108, 115, 296 N.W. 800, 803, applies the same rule to the defenses of willful intent to injure and intoxication, injuries from which are not compensable by reason of Code section 85.16, I.C.A. We said: 'It was of course incumbent upon appellant to prove by a preponderance of the evidence that death was caused by injury arising out of and in the course of employment. * * * If appellant sustained this burden she was entitled to prevail unless appellee succeeded in proving by a preponderance of the evidence one or both of the affirmative defenses of suicide and intoxication. This question is clearly ruled by Everts v. Jorgensen, 227 Iowa 818, 289 N.W. 11.'

Birch v. Malvern Cold Storage Co., 230 Iowa 357, 360, 297 N.W. 818, 819, holds, 'The injury arose out of the employment and claimant is entitled to an award unless defendant has established its defense that intoxication was the proximate cause of the injury.'

Dewey v. National Tank Main Corp., 233 Iowa 58, 62, 8 N.W.2d 593, 596, holds, 'When the corporation defends upon the ground that she held an official position and was therefore not an employee, it is incumbent upon the corporation to prove she was an officer * * *.' The exception from the employee status of one holding an official position is provided for by the same paragraph 3 of section 85.61, heretofore quoted, as provides for the exception of an independent contractor.

Judge Bliss' opinion in Garrison v. Gortler, 234 Iowa 541, 564, 13 N.W.2d 358, 368-369, cites many authorities for this proposition, 'The appellant made out a prima facie case of employment by the appellee when he established that he was in the service of the latter under a contract of hire. The burden was then upon the appellee, in defense, to establish that appellant was an independent contractor, or that he was engaged in employment not for the purposes of appellee's trade or business.' The opinion adds, 'Appellee accepted this burden by pleading these defenses.'

No Iowa decision contrary to these has come to our attention.

[252 Iowa 346] An article by Professor Maurice H. Merrill in 32 Iowa Law Review 1, 30, says of the defense of intoxication, 'But, as in all other defenses, the burden of establishing it lies with the defendant.' Everts v. Jorgensen, supra, 227 Iowa 818, 289 N.W. 11, and Birch v. Malvern Cold Storage Co., supra, 230 Iowa 357, 297 N.W. 818, are cited. A number of precedents from other states are in accord. See for example Victor Chemical Works v. Industrial Board, 274 Ill. 11, 113 N.E. 173, 179, Ann.Cas.1918B, 627, 634; Meek v. Julian, 219 Ind. 83, 36 N.E.2d 854, 855, and citations; Clark v. Hughey, 233 Ind. 134, 117 N.E.2d 360, 361; Cunning v. City of Hopkins, Minn., 103 N.W.2d 876, 885.

The Meek opinion states, 'A measure of liberality is indulged in construing the legislative definition of 'employee,'* * * and doubt as to whether the claimant was an employee or an independent contractor is resolved in favor of the former status. (citations.).' [219 Ind. 83, 36 N.W.2d 855].

To like effect is 99 C.J.S. Workmen's Compensation § 91a, page 318, and, where similar exclusions were relied upon, Heiliger v. City of Sheldon, 236 Iowa 146, 154, 18 N.W.2d 182, 187; Brewer v. Central Const. Co., 241 Iowa 799, 805, 43 N.W.2d 131, 135; Crouse v. Lloyd's Turkey Ranch, 251 Iowa ----, 100 N.W.2d 115, 118-119, and citations. The Crouse opinion says: '* * * in case of doubt we must construe the statute liberally and with a view to extend its aid to every employee who can fairly be brought within it.'

Appllees have cited, as the trial court did in support of its conclusion on the question of burden of proof, Scholz v. Industrial Commission, 267 Wis. 31, 64 N.W.2d

Page 106

204, 65 N.W.2d 1, which holds the issue as to whether claimant might have been an independent contractor, rather than an employee, does not present an affirmative defense. However, it also holds the claimant has the benefit of a presumption that, if at the time of the accident he was rendering service for the alleged employer, the relationship of employer and employee existed, and the alleged employer has the burden of presenting evidence to rebut the presumption. It may be conceded this precedent does not accord with the rule to which we are committed.

[252 Iowa 347] II. As we have repeatedly pointed out, in the absence of fraud the findings of fact by the industrial commissioner are conclusive. Code section 86.29,...