Elliott v. Wilkinson

• Decision Date: 03 April 1957
• Docket Number: No. 49140,49140
• Citation: 248 Iowa 667,81 N.W.2d 925
• Parties: Edgar M. ELLIOTT, Claimant-Appellee, v. Lloyd WIKLINSON, Employer-Appellant.
• Court: Iowa Supreme Court

Page 925

81 N.W.2d 925

248 Iowa 667

Edgar M. ELLIOTT, Claimant-Appellee, v. Lloyd WIKLINSON, Employer-Appellant.

No. 49140.

Supreme Court of Iowa.

April 3, 1957.

Mosier, Mosier, Thomas & Beatty, Waterloo, for appellant.

John W. Pieters, Waterloo, for appellee.

HAYS, Justice.

Workmen's compensation case wherein the defendant-employer appeals from a judgment of the district court affirming the industrial commissioner's award of compensation.

I. At the time of the arbitration hearing, defendant filed a motion to join as parties to the hearing the Warren Transport, Inc., and Donaldson Transfer Company under 58 I.C.A. Rules 25(c) and 33(b), R.C.P. This motion was overruled and the so doing is assigned as error. We have searched the record for some indication that this ruling was presented or argued to the trial court. No ruling upon this point is found nor do we find anything to indicate such a question was raised. The fact the trial court states in its decision, 'Defendant solely contends and argues that compensation was erroneously awarded for the reason that at the time he suffered the injury claimant was not his employee.' No ground for reversal is presented by this assigned error. Green v. Jones County, 235 Iowa 564, 16 N.W.2d 238; Turner v. Zip Motors, Inc., 245 Iowa 1091, 65 N.W.2d 427, 45 A.L.R.2d 1174.

II. The basic issue raised is that the evidence does not warrant or support the finding of the Commissioner that an employer-employee relationship existed between claimant and defendant. We think all parties concede that the injuries arose out of and in the course of the employment. Appellant puts the question as follows: Who was the employer? We think the sole question is: Was defendant the employer?

Much of appellant's brief and argument as well as the record is devoted to the claim that some third person or persons, the Warren Transport, Inc. and/or Donaldson Transfer Co., was the sole employer or perhaps dual employers with defendant. The record shows that at the time of the injury, claimant was driving a truck-tractor owned by defendant. That defendant, owner of two truck-tractors, was operating them exclusively under leases with the companies above referred to, and at the time of the injuries claimant was transporting a cargo assigned to the Donaldson Transfer Co. If appellant's claim is based upon the 'loaned employee' doctrine, or on 'dual employment', such are not applicable in this case. Muscatine City Water Works v. Duge, 232 Iowa 1076, 7 N.W.2d 203; Hassebrock v. Weaver Const. Co., 246 Iowa 622, 67 N.W.2d 549. Whether either or both companies were employers of claimant is not the issue and cases such as Towers v. Watson Bros. Trans. Co., 229 Iowa 387, 294 N.W. 594; Sanford v. Goodridge, 234 Iowa 1036, 13 N.W.2d 40; and Hassebrock v. Weaver Const. Co., supra, cited by appellant are not in point.

Section 86.29, Code 1954, I.C.A., in part provides, 'In the absence of fraud the findings of fact made by the industrial Commissioner within his powers shall be conclusive' on appeal. In construing this and Section 86.30, we have often held that on appeal the evidence is considered in the light most favorable to the employee. Rose v. John Deere Ottumwa Works, Iowa, 76 N.W.2d 756; Pohler v. T. W. Snow Const. Co., 239 Iowa 1018, 33 N.W.2d 416, 421. It is also the established rule that where the evidence is in dispute, or, if not in dispute, is of such a nature that reasonable minds may differ on the inference fairly to be drawn therefrom, the Commissioner's finding is on the same footing as a jury verdict and is conclusive upon this court. Burt v. John Deere Waterloo Works, Iowa, 73 N.W.2d 732; Taylor v. Horning, 240 Iowa 338, 38 N.W.2d 105. In cases, however, where the facts are not in dispute and different inferences could not reasonably be drawn therefrom, it becomes a question of law and this court is not bound by the commissioner's findings or conclusions of law. Pribyl v. Standard Elec. Co., 246 Iowa 333, 67 N.W.2d 438; Van De Garde v. Osceola Co-operative Creamery Ass'n, 232 Iowa 51, 4 N.W.2d 234. Under the record in this case and under our holdings it matters little whether the matter is determined by us as a matter of law, or we accept the Commissioner's findings as conclusive. The result must be the same.

Section 85.61(2) defines an employee as 'a person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship, for an employer' with some exceptions not applicable here. Claimant, if he is to recover, has the burden of showing such a contractual relationship with the defendant. Knudson v. Jackson, 191 Iowa 947, 183 N.W. 391; Oswalt v. Lucas County, 222 Iowa 1099, 270 N.W. 847; Muscatine City Water Works v. Duge, 232 Iowa 1076, 7 N.W.2d 203.

The record shows that under the leases with the companies above mentioned, the defendant was to furnish drivers for his truck-tractors. While the companies had certain requirements that a driver must meet,...