Fintzel v. Stoddard Tractor & Equipment Co.

• Decision Date: 14 May 1935
• Docket Number: 42856.
• Parties: FINTZEL v. STODDARD TRACTOR & EQUIPMENT CO. et al.
• Court: Iowa Supreme Court

260 N.W. 725

219 Iowa 1263

FINTZEL v. STODDARD TRACTOR & EQUIPMENT CO. et al.

No. 42856.

Supreme Court of Iowa.

May 14, 1935

Appeal from District Court, Woodbury County; F. H. Rice, Judge.

In proceedings under the Workmen's Compensation Act, the industrial commissioner allowed compensation to a salesman of steel culverts for injuries received while hunting pheasants in company with the son of a prospective customer, in pursuance of arrangements made by the prospective customer. The question involved is whether there is evidence to sustain the finding of the industrial commissioner that the injuries were sustained by the salesman in the course of his employment. More details as to the facts appear in the opinion. The trial court sustained the finding of the industrial commissioner.

Affirmed.

Findings of industrial commissioner will not be disturbed if supported by evidence. Code 1931, § 1453 (I.C.A. § 86.30).

Stewart & Hatfield, of Sioux City, for appellants Stoddard Tractor & Equipment Co. and Hardware Mut. Casualty Co.

Henderson, Hatfield & Wadden, of Sioux City, for appellee Clare D. Fintzel.

POWERS, Justice.

The plaintiff instituted appropriate proceedings before the industrial commissioner to obtain compensation for personal injuries under the Workmen's Compensation Act (Code 1931 § 1361 et seq.). The commissioner reversed an arbitration decision and allowed compensation. The employer and insurance carrier appealed to the district court of Woodbury county Iowa, which sustained the commissioner and entered judgment for plaintiff accordingly. From that judgment the employer and the insurance carrier have appealed to this court.

There is but one question involved, and that is, whether the evidence sustains the finding of the Industrial Commissioner that the plaintiff's claim is for " injuries sustained arising out of and in the course of the employment." Section 1377, Code, 1931.

It is conceded that the finding of the industrial commissioner must be sustained if there is evidence to support it. Section 1453, Code 1931. " The courts may not interfere with the findings of fact, made by the Industrial Commissioner, when these are supported by evidence, even though it may be thought there be error." Pace v. Appanoose County, 184 Iowa, 498, 168 N.W. 916, 917.

Plaintiff was a salesman for the Stoddard Tractor & Equipment Company of Sioux City, a corporation, of which a Mr. Stoddard was the president and managing officer. He had no definite working hours. His business was to sell merchandise for his employer. He worked Sundays and nights, and whenever he could promote sales of his employer's product. His employment was of the type which may be described as continuous. Walker v. Speeder Machinery Corporation, 213 Iowa, 1134, 240 N.W. 725.He was free to adopt whatever method seemed best calculated to promote sales. His employer sent him to Pender, Neb., some twenty-five miles west of Sioux City, on Friday, October 20, 1933, to submit to the county board of commissioners of Thurston county an offer to sell a carload of corrugated steel culverts in response to an advertised public letting of a contract by the county commissioners for such materials. It appears that Mr. Stoddard, the employer, ordinarily took care of this territory personally, but on that day he had to be in Ames or Des Moines. The plaintiff went to Pender and submitted the low bid for the furnishing of the materials. The contract, however, was not let, nor was the bid rejected. No action was taken. The reason appears to be that the board of commissioners, or at least the president of the board of commissioners, a Mr. Ralph Norris, felt that the low bid might be too high, and that further time should be taken for consideration and perhaps investigation. The matter seems to have been left with Ralph Norris, the chairman of the board, for decision. The plaintiff talked to Mr. Norris in an effort to close the deal and get the contract on that day before leaving Pender. Mr. Norris then suggested to him that he and Stoddard come out to Mr. Norris' farm on the following Sunday, that the pheasant season opened on that day, and they could shoot some pheasants and talk over the contract.

When the plaintiff returned to Sioux City on Friday night, he communicated the situation to Mr. Stoddard, his employer, who was a personal friend and long-time acquaintance of Ralph Norris. Mr. Stoddard immediately planned to go to the Ralph Norris farm on Sunday in response to this invitation; but since the plaintiff had submitted the bid and was familiar with the figures, and Mr. Stoddard was not familiar with them, Mr. Stoddard suggested that the plaintiff, his salesman, go along, as he would be in better position to talk about the contract. At the suggestion of the employer, therefore, the plaintiff left with his employer from Sioux City early Sunday morning to go to the Ralph Norris farm near Pender. They left early in the morning because it was believed that the pheasant hunting would be better in the early part of the day. When they arrived at the Ralph Norris home, Mr. Norris came out of the house and told them that he was feeding a large number of cattle, that his hired man had been celebrating Saturday night and had not come home, that it would be necessary, therefore, for him to do all the chores and feed the cattle, and that he would not be able to do any hunting for awhile. He told them, also, that he had known the night before that he would not be able to hunt in the morning, and had arranged with his son, Harold Norris, to take them out in the fields pheasant hunting. He directed Stoddard and the plaintiff to go to his son's home, about a quarter of a mile distant from where Ralph Norris lived, and told them he would join them later. This they did, and after hunting for an hour and a half or two hours, and obtaining some five or six pheasants, they prepared to return to the Ralph Norris house when the gun of Harold Norris was accidentally discharged and the plaintiff severely injured in the leg.

The appellant concedes that the trip to the Ralph Norris home was in the course of plaintiff's employment, but contends that the trip from the Ralph Norris home over to the home of his son for the purpose of hunting pheasants was a side trip, a deviation, a temporary abandonment of the employer's business, and that it was, therefore, outside the course of plaintiff's employment. The appellee, on the other hand, contends that such trip from the home of Ralph Norris to hunt pheasants with the son of Ralph Norris was within the scope of his employment, and that he was pursuing his employment at the time of the injury; that in doing what he did, he was pursuing a proper means for the attainment of his ultimate object of obtaining a contract for the sale of his product.

Both parties seem to assume that the injury arose out of the employment, if it occurred in the course of the employment. The issue narrows down, therefore, to the question as to whether the injury occurred in the course of the...