Erickson v. Erickson

Decision Date10 February 1959
Docket NumberNo. 49648,49648
Citation94 N.W.2d 728,250 Iowa 491
PartiesRay ERICKSON, Appellee, v. Earl ERICKSON, Appellant, and Ernest Erickson, Defendant.
CourtIowa Supreme Court

Linnan & Lynch, Algona, and H. A. Stoebe, Humboldt, for appellant and defendant.

Garfield, Baker & Miller, Humboldt, for appellee.

PETERSON, Justice.

Plaintiff and defendants are farmers living in Humboldt County. They are brothers. On December 13, 1955, defendant telephoned plaintiff stating that he was going to a cattle sale in Nebraska and if his wife needed any help with the chores while he was gone he would like to have him take care of it. Plaintiff agreed to do so. On December 14th Mrs. Erickson called Ray and said the hog feeders were empty and asked him to come over and fill them. About 10:30 A.M. of December 14th plaintiff Ray, together with his brother Ansel, came to the Earl Erickson place to perform the chores.

There are six Erickson brothers farming in that area and they had either purchased or built some special wagons in which to mix hog feeds and unload them into the hog feeders. The wagons were attached to a tractor and through extensions and a universal joint connection the power of the tractor mixed and elevated the feed.

Ray and Ansel started the tractor and attached same to the feeder wagon and proceeded to the hog yard. Ray had to get up on the wagon tongue between the tractor and the wagon in order to pull the lever which would let the feed down from the wagon into the hog feeder. When he stood on the wagon tongue the bottom of his trousers were caught by some bolts extending from attached plates. The plates were going at the rate of about 350 revolutions per minute and it tore his trousers away from his body, wrapped them around the connecting rod and threw Ray violently to the ground. He called to Ansel to stop the machinery, which he did, but the damage had been done. Ray was very seriously injured and was not able to work for a year, and has not yet fully recovered. He had $5,071.48 hospital and medical expense.

The case was tried to the court without a jury. Judgment was rendered against defendant Earl Erickson for $12,571.48. The case was dismissed as to Ernest Erickson as he had no interest in the farming operations. Defendant has appealed.

Appellant assigns six errors in the form of six reasons for reversal, but they can be considered under three legal propositions; he alleges the court erred: 1. In establishing the relationship of employer and employee between plaintiff and defendant. 2. In holding that defendant was negligent. 3. In holding plaintiff did not assume the risk.

I. Appellant contends there was no relationship of employer and employee; that the chores plaintiff did for defendant were only in the nature of casual service; they were rendered by one brother to the other as a matter of courtesy.

The record does not sustain this contention. The evidence shows without conflict that the two brothers traded services back and forth throughout the year. Each brother would keep track of the time he worked for the other brother and at the end of the year, if there was any difference in the hours between them, payment would be made for such difference. The testimony of both brothers is clear that payment was made for the services rendered by plaintiff to defendant in connection with the chores which were taken care of by plaintiff at the time the accident occurred.

Defendant Earl testified: 'Q. You have heretofore testified that Ray worked for you on a whole day or job basis--temporary basis, at least since 1952; on those occasions did you or did you not pay Ray for his services? A. Yes I have. * * * On the occasions that Ray did chores for me he was paid by me cash. * * * Q. Did you pay Ray for this work that day? A. Yes.'

Plaintiff testified: 'I was to keep tab of the hours I worked for him. That was the agreement. He told me to keep tab of the hours I worked and then he said, 'I'll settle with you', which he did.'

Payment for the services rendered is one test as to the existence of the relationship of employer and employee. Another test is whether or not the person for whom the work was done gave instructions as to the work, or had control of the services of the employee. Bell v. Brown, 214 Iowa 370, 239 N.W. 785; Johnson v. Kinney, 232 Iowa 1016, 7 N.W.2d 188, 144 A.L.R. 997.

Even where there is no specific arrangement for pay, but there is an exchange of work between farmers and an agreement that under such conditions one farmer performs services for the other, we have held the relationship of master and servant is present. Napier v. Patterson, 198 Iowa 257, 196 N.W. 73; Porter v. Decker, 222 Iowa 1109, 270 N.W. 897; Lembke v. Fritz, 223 Iowa 261, 272 N.W. 300; Ganzhorn v. Reep, 234 Iowa 495, 12 N.W.2d 154.

In the case at bar the evidence not only shows the exchange of work between the brothers, but shows the further fact that payment was made as to any difference.

With reference to defendant instructing plaintiff it appears without dispute that defendant telephoned plaintiff on the day before the accident happened and asked him if he would come and do the chores if his wife called him. He said he would. The wife did call, and when plaintiff came to defendant's farm she gave instructions, on behalf of her husband, as to the services to be rendered. The court correctly held that an employer and employee relationship existed.

II. Defendant contends that no negligence should be charged against him, as plaintiff knew the tractor and wagon unloader arrangement, having used one for ten years. This is more in the nature of a contributory negligence allegation than one of absence of negligence.

In a master and servant relationship, the matter of contributory negligence is only effective as mitigation of damages. R.C.P. 97, 58 I.C.A. Oestereich v. Leslie, 212 Iowa 105, 234 N.W. 229; Morse v. Century Cab Co., 230 Iowa 443, 297 N.W. 877, 134 A.L.R. 635; Band v. Reinke, 230 Iowa 515, 298 N.W. 865. In such cases it is not necessary that the servant plead freedom from contributory negligence. It is an affirmative defense. Appellant raises no question as to the amount of the judgment, and does not plead contributory negligence.

To arrive at a conclusion with reference to this alleged error it is necessary that we state the facts in some detail. The six Erickson brothers had five of the wagon unloaders. They had purchased three ready-made, and had erected two themselves on the exact basis of the wagons purchased. They had been using them for many years. This included plaintiff who had one on his farm.

The wagon unloader is a 'V' shaped box, with an elevator attachment at the back and an auger extending lengthwise through the bottom of the box. When power is applied, the auger revolves, mixing the grain and protein, and forcing it through the elevator into the feeder bin. At the front of the wagon is a large lever which is operated by hand, the purpose of which is to release the feed. The front end of the auger is attached to a universal joint and immediately following the universal joint are two flat circular discs fastened together by means of shear bolts. One disc is attached to the universal joint; the other disc is connected with a shaft which telescopes into the power take-off shaft of the tractor. This power take-off shaft is connected to the tractor by means of a universal joint and gear box. The wagon unloader is constructed with a triangular metal tongue, which is approximately eight or ten inches below the power shaft and is fastened to the draw-bar by means of a large bolt. The power take-off is constructed in the back of the tractor behind and below the seat. When the tractor is stationary and the motor in the tractor is idling, the power take-off can be applied by pulling the lever. The power shaft and auger then revolve, forcing the feed from the wagon box into the elevator and thence into the feed bin.

The difficulty arose because of the bolts which fastened together the two flat circular discs. When the wagons were purchased they came with a round headed bolt connecting the two discs and both the head of the bolt and the nut on the other end were flush with the discs. Under those circumstances there was no element of danger involved in the bolts. However, the standard bolts had sheared off and it became necessary for defendant to substitute new bolts. He did not have any bolts with the rounded heads and fitting flush outside the two discs so he substituted what he had, which were called stove bolts. They were longer than the normal bolts and he was not able to place the bolts in the same manner as originally placed. He had to place them in the opposite direction. This caused the ends of the bolts to extend out from one-half to three-quarters inch beyond the nuts.

Plaintiff stood on the triangular wagon tongue. He grabbed the lever on the front of the wagon with both hands, pulling the lever toward him to release the feed into the feed bin. At the same time, he called to Ansel to apply the power. As the power was being applied and the feed was gradually being unloaded from the wagon, plaintiff became entangled in the power shaft.

There is no question about what actually happened. The real facts of the situation are shown from the evidence of Ernest Erickson. He was the brother, who had gone with defendant to Nebraska, but who came home about noon of the day of the accident. Ernest testified: 'I did go out there about three or four o'clock in the afternoon. I observed the clothes about the power take-off shaft. There were clothes around the power take-off shaft, some right next to the wagon behind the knuckle and running up to about where the two bars go together. I removed the clothing. It was wrapped around the shaft about seven times. Part of the clothing was underneath the other cloth. When I started unwrapping the loose end was toward the tractor. When I started to...

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