Eddington v. Nw. Bell Tel. Co., No. 35983.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: EVANS
• Citation: 202 N.W. 374,201 Iowa 67
• Parties: EDDINGTON v. NORTHWESTERN BELL TELEPHONE CO. ET AL.
• Decision Date: 20 February 1925
• Docket Number: No. 35983.

201 Iowa 67
202 N.W. 374

EDDINGTON
v.
NORTHWESTERN BELL TELEPHONE CO. ET AL.

No. 35983.

Supreme Court of Iowa.

Feb. 20, 1925.

Appeal from District Court, Woodbury County; A. O. Wakefield, Judge.

Action for damages by an employee against his employer, for personal injuries sustained in the course of his employment. There was a verdict for the plaintiff, and judgment entered thereon. The defendants appeal. Reversed and remanded.

[202 N.W. 375]

Burgess & Gill, of Sioux City, and Parrish, Cohen, Guthrie & Watters, of Des Moines, for appellants.

North & Pollock, of Omaha, Neb., and Walter & Loepp, of Sioux City, for appellee.

EVANS, J.

The only question presented on this appeal is whether the plaintiff's employment came within the purview of our Compensation Act (Acts 1913, c. 147). If yea, then the plaintiff was confined to his remedy thereunder. If nay, then the plaintiff was entitled to pursue his common-law remedy for damages. The defendant contends for the affirmative on this question, and the plaintiff for the negative.

Concededly, the employment was within the purview of the Compensation Act, unless it was covered by the specific exceptions thereto. The plaintiff contends that his employment was purely “casual,” and therefore within the statutory exception. Such is the question presented.

The defendant is a corporation engaged in the operation of a telephone system. The plaintiff sought and obtained employment as a lineman. Prior to such employment, the plaintiff had already secured another position which would not be available to him for 30 days or more. He therefore limited the time of his employment to 30 days, subject to a possibility of a later extension. This employment was had and begun about the middle of April, 1922, and the injury to the plaintiff occurred about one month later, in the course of his employment, and while engaged in the trade or business of the defendant.

At or about the time of plaintiff's employment the defendant company was substantially enlarging its force of linemen because of a press of work, caused by a sleet storm just preceding such employment, which greatly damaged the poles and lines of the defendant company. The plaintiff was one of many additional employees employed by the company at or about the same time, in the same general line of work. This was largely to repair and straighten and tighten poles and lines which had been damaged by the storm. Of the extra men then employed, some of them continued their employment for shorter periods of a few days only, and some for longer periods, while still others continued their employment indefinitely. The foregoing statement of facts follows the testimony of the plaintiff. It is a sufficient statement of the material facts for the purpose of the question before us.

We have just had occasion to construe our Compensation Act in a similar case. See Pfister v. Doon Electric Co., 202 N. W. 371. (Filed at the present sitting.) Our conclusion in that case must be deemed decisive of this, unless a material distinction between the two cases is to be found at one point. The major premise of the plaintiff is that his employment was temporary, and that he was employed, not as a regular lineman, but as a mere “extra.” Therefore he contends that his employment was purely “casual.” We have to consider therefore whether this distinction is material and controlling.

In the Pfister Case the employer was defending against liability on the ground that its employment of the claimant was purely “casual.” We held that he was employed for the purpose of the trade and business of that defendant, and that he was subjected thereby to the hazards of the work, and was injured thereby, and that his employment was not “casual” within the meaning of the Compensation Act. The allowance of compensation was therefore sustained.

In the case at bar it is not the employer but the employee who seeks to escape the operation of the Compensation Act, and presents substantially the same contention as was presented by the employer in the Pfister Case. The question, however, must be disposed of by us precisely the same as if the employee were here asking compensation under the statute. In such event, could we say that he was outside of the scope of the statute and within its exceptions, and therefore not entitled to compensation?

Accepting the contention that the employment of the plaintiff was temporary, what is the effect of such fact upon the question presented? That the temporary character of employment is a circumstance to be considered is doubtless true. Can we say, however, that because employment was for a period of

[202 N.W. 376]

only 30 days, it became thereby “casual employment,” and was not compensable under the Act? To do so would be to add something to the statute. If such were the purpose of the statute, it were easy to have so stated therein. If we should so hold, should we close the door at that point or period of time, or should we leave it open for more extended periods in later cases?

Is there a controlling force in the suggestion that the plaintiff was working as an “extra”? He was an “extra” only in the sense that many other men newly hired were “extras.” They were “extra,” in the sense that the corporation was working a larger number of linemen than usual. If the increase of force of men operates to withhold from the workmen the compensation of the statute, then it would become...