Forbes v. Ottumwa Sand Co.

• Court: Iowa Supreme Court
• Writing for the Court: EVANS
• Citation: Forbes v. Ottumwa Sand Co., 216 Iowa 292, 249 N.W. 399 (Iowa 1933)
• Decision Date: 20 June 1933
• Docket Number: No. 42020.,42020.
• Parties: FORBES v. OTTUMWA SAND CO. et al.

216 Iowa 292

249 N.W. 399

FORBES

v.OTTUMWA SAND CO. et al.

No. 42020.

Supreme Court of Iowa.

June 20, 1933.

Appeal from District Court, Wapello County; R. W. Smith, Judge.

This is a workmen's compensation case. The ultimate controversy was over the amount of compensation to be awarded to the claimant on account of the death of her husband. Two questions are presented. One of them is directed to the merits of the claim as to the true amount to be awarded. The other challenges the jurisdiction of the commissioner in the premises. We shall consider first the question of merit.

The commissioner fixed the amount of recovery at $15 per week for 300 weeks. From this order the defendant appealed to the district court, where such order was affirmed.

Affirmed.

Smith & Work, of Ottumwa, for appellant.

John T. Clarkson and Theodore B. Perry, both of Albia, for appellee.

EVANS, Justice.

[1] The husband of the plaintiff lost his life while engaged in the service of the defendant and while in the course of his employment on January 28, 1931. The defendant is a corporation, which has been engaged for many years in its present line of work. Its articles of incorporation define the scope of its enterprise as the acquiring and selling of “sand, stone and ice and all other kinds of property.” It operates upon the banks of the Des Moines river in the vicinity of Ottumwa. It collects annually large quantities of sand and gravel by the use of dredges; and by grading and classifying, prepares the same for sale to contractors and builders. In the winter time it collects, sells, and delivers to various customers large quantities of ice which it cuts and collects from the Des Moines river. The decedent, William Forbes, had been one of its employees for many years in both lines of work. On January 28, 1931, he was engaged in cutting ice for the defendant and was drowned while so engaged. The defendant concedes its liability for compensation in some amount. It is agreed that the average wage of the decedent was $4.50 per day. On the face of the statute therefore the claimant would be entitled to recover as a weekly payment 60 per cent. of the average weekly earnings of the decedent not to exceed, however, $15 per week, for a period of 300 weeks. Such was the amount allowed by the Industrial Commissioner. The contention of the defendant at this point is that the claimant is entitled to $15 per week only for a period of 200 weeks. This contention is predicated upon subdivision 6 of section 1397, which provides as follows: “6. For employees in a business or enterprise which customarily shuts down and ceases operation during a season of each year, the number of working days which it is the custom of such business or enterprise to operate each year instead of three hundred shall be the basis for computing the annual earnings; but the minimum number of days which shall be used as a basis for the year's work shall not be less than two hundred.”

The defendant contends that its enterprise “shuts down and ceases operation during a season of each year” and that therefore it is entitled to the benefit of the reduction provided for in the foregoing section. This indicates the issue of fact, which was tried before the commissioner and upon which the finding of the commissioner was adverse to the defendant.

It appears for the defendant that the dredging operations must necessarily stop about the 1st of December, when freezing weather sets in and renders the use of the dredge impracticable. Conversely the ice harvest cannot be gathered in the summer time. It must wait for the winter to mature its crop. The ice cutting season lasts for an average of 11 days in the winter time. The ice is all shipped to the customers as fast as it is gathered. The defendant operates no icehouse. It sells its ice in advance and then fills its orders. It is undeniably true that there is a part of every winter when the defendant neither dredges sand nor gathers ice. The fact remains under the evidence that the plant does not shut down at any season. It is in continuous operation from one end of the year to the other. Collecting sand and gravel from the river banks by the use of dredges comprises only a part of the sand and gravel business. The marketing and delivering of the stocks of sand constitute a vital and continuous part of the enterprise. It is true that...