Dial v. Coleman's Lunch
| Decision Date | 14 November 1933 |
| Docket Number | No. 42162.,42162. |
| Citation | 251 N.W. 33,217 Iowa 945 |
| Parties | DIAL v. COLEMAN'S LUNCH et al. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Black Hawk County; A. B. Lovejoy, Judge.
Proceedings under the Workmen's Compensation Law. The findings and award of the industrial commissioner on review in favor of the claimant were, on appeal to the district court, reversed, and the claimant appeals.
Reversed.Carl F. Jordan, of Cedar Rapids, and C. W. Randall, of Waterloo, for appellant.
Roger P. Birdsall, of Waterloo, for appellees.
[1] On or about the 14th day of April, 1932, appellant was employed by the appellee Coleman's Lunch to work at the restaurant operated under the above name. The employment began at 8 o'clock in the evening, and the claimant received the injuries complained of about 12 o'clock the same night. He was directed to wash the walls of the kitchen which had become smoked and greasy from use and a fire in an adjacent building. Compensation was awarded to appellant by the industrial commissioner, but, upon appeal to the district court, a reversal was had. The evidence tends to show that very little was said between the parties at the time of the employment, and the record does not very definitely disclose whether it was to be for the single job of washing the walls or whether it was to continue indefinitely. The evidence was, however, sufficient to support a finding by the industrial commissioner that the employment was not for the sole purpose of washing the walls and that the employer contemplated that it would continue the same as the employment of other persons working at the restaurant. The question presented to this court for decision is: Was the employment of appellant purely casual, as provided by section 1361 of the Code, or, if casual, was it for the purpose of the employer's trade or business? As pointed out in numerous of the cases hereafter cited, changes have occurred in the statute from time to time dealing with the subject of casual employment. The term “purely casual employment” has not been so far defined by statute as to assign to it definitely prescribed limitations. The word “casual,” as defined by lexicographers, is quoted in Herbig v. Walton Auto Co., 191 Iowa, 394, 182 N. W. 204, 206 as follows:
The statute is, however, far more comprehensive in its scope than the mere technical definition of the word “casual.” It is not here employed in its purely technical or abstract sense. It must be construed in the light of the statute and so as to carry out the legislative intent. The term “employer” is defined by subdivision 1 of section 1421 of the Code of 1931 as follows: ““‘Employer’ includes and applies to any person, firm, association, or corporation, state, county, municipal corporation, city under special charter and under commission form of government, school district, and the legal representatives of a deceased employer.”
The term “workman” or “employee” is defined in subdivision 2 of the same section in the following language: “‘Workman’ or ‘employee’ means a person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship, for an employer, except as hereinafter specified.”
Paragraph a of subdivision 3 of the foregoing section is exclusive in terms, but, by implication, inclusive also. We quote as follows:
“3. The following persons shall not be deemed ‘workmen’ or ‘employees':
a. A person whose employment is purely casual and not for the purpose of the employer's trade or business.”
A person whose employment is purely casual and not for the purpose of the trade or business is neither a “workman” nor an “employee” within the meaning of the statute. Clearly, the appellee Coleman's Lunch comes within the contemplated definition of the term “employer,” but, if the employment of appellant was purely casual, without more, his injuries are not compensable. This is true under each of the sections of the statute cited above. The industrial commissioner found that the employment was purely casual in nature, but that this fact alone did not present a legal ground for denying compensation. The legal conclusion implied in this finding and conclusion of fact by the industrial commissioner are in harmony with the prior holdings of this court. Pfister v. Doon Electric Co., 199 Iowa, 548, 202 N. W. 371;Eddington v. Northwestern Bell Tel. Co., 201 Iowa, 67, 202 N. W. 374;Oliphant v. Hawkinson, 192 Iowa, 1259, 183 N. W. 805, 33 A. L. R. 1433.
The reason supporting the finding of the industrial commissioner at this point is that the employment may also have been for “the purpose of the employer's trade or business.” If so, then clearly, under the language of the statute and the well-settled rule in such cases, the injuries are compensable.
[2] Was appellant's employment, although purely casual in nature, not for the purpose of the trade or business of the employer? This is the vital question in the case.
It is provided by section 2818 of the Code of 1931 that the side walls and ceilings of every restaurant shall be of material so that they can be washed clean, and they shall be kept well limed and washed, and by section 2824 that the walls and ceilings shall be kept in a thoroughly clean condition.
The statutes cited make it the legal duty of restaurant keepers, as a part of the equipment, and for the purpose of the trade or business, to maintain and preserve cleanliness in the respects designated. There is, no doubt, some diversity in the holdings of courts in other jurisdictions as to just what constitutes employment for the purposes of a trade or business. The term ““employer,” as defined by the statute, is a broad and comprehensive one. The exception, which excludes a person working in a certain capacity, from the statutory definition of “workman” or “employee,” is defined only as the language employed generally accomplishes this result. There is a broad sense in which every kind of service rendered by a person working upon or about a building, or performing services on the inside thereof, used for business purposes, is for the purpose of the employer's trade or business. The language of the statute does not, however, permit the application of so broad a definition in determining just what service comes within the “purpose of a trade or business.” Cleanliness is indispensable to the highest success of a restaurant keeper's business. The Legislature, as already appears, has imposed certain strict duties upon him in this particular.
The length of the term of employment does not alone determine its character. Although casual, if for the purpose of the trade or business, a person employed therein is a “workman” or “employee” and this is true whether the employment is for a specific task or of indefinite and uncertain duration.
The Supreme Court of Michigan in Holbrook v. Olympia Hotel Co., 200 Mich. 597, 166 N. W. 876, 878, speaking to this question, said: ...
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Garrison v. Gortler
...as it was, since the injury occurred in performing services for the purpose of the trade and business of the employer. The decision in the Dial case strongly supports the contention of appellant in this case. We see no force in the appellee's contention that the Dial decision is not in poin......