Gardner v. Trs. of Main St. Methodist Episcopal Church of Ottumwa

• Decision Date: 24 October 1933
• Docket Number: No. 41643.,41643.
• Parties: GARDNER v. TRUSTEES OF MAIN STREET METHODIST EPISCOPAL CHURCH OF OTTUMWA et al.
• Court: Iowa Supreme Court

217 Iowa 1390

250 N.W. 740

GARDNER

v.TRUSTEES OF MAIN STREET METHODIST EPISCOPAL CHURCH OF OTTUMWA et al.

No. 41643.

Supreme Court of Iowa.

Oct. 24, 1933.

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

This is a proceeding under the Workmen's Compensation Act in which the industrial commissioner awarded compensation. On appeal to the district court, the commissioner's award was affirmed, and judgment was rendered in favor of plaintiff. Defendant appeals.

Affirmed.

Superseding opinion in 244 N. W. 667.McNett, Kuhns & Brown, of Ottumwa, for appellants.

Elmer K. Bekman, of Ottumwa (Gilmore & Moon, of Ottumwa, of counsel), for appellee.

KINTZINGER, Justice.

This case was originally decided in Gardner v. Trustees of Main Street Methodist Church, reported in 244 N. W. 667. A rehearing was granted, and the former opinion is hereby withdrawn.

The defendant Methodist Episcopal Church of Ottumwa is a volunteer association for church purposes; the other defendant is an insurance carrier from whom the church had purchased a compensation policy to protect its workmen, about to be employed. The church had undertaken the construction of a church building in Ottumwa, and was at the time in question engaged in excavation work for the basement of the church. This work was being done by the trustees of the church, and one Mr. Porter was authorized to employ the necessary workmen to complete the basement.

Frank Gardner, the decedent, was on April 8th employed with others to assist in completing the excavation. He worked from April 8 until May 1, 1931, on which date a bank of earth caved in, causing him severe injuries resulting in his death. At the time Gardner was employed the church planned to construct the entire building and engaged a superintendent to direct the building operations, and hire the laborers. Before the excavation was finished, the church let the contract for the superstructure, but continued with the excavation work itself. The excavation was completed about May 2d, but the church thereafter continued to employ a number of men to do certain work on the premises not included in the building contract, such as grading, filling, sidewalks, and other necessary clearing up and incidentals. In the prosecution of this work, the church employed a number of workmen until almost the 1st of July. The testimony shows that Mr. Porter, the man in charge for the church, hired Mr. Gardner as one of his permanent men. He told Gardner when he was employed that, even though a contractor did build the church building, he would be employed as a regular man as long as there was any work to do, and that he would give him a job until all the work was finished; he was told he would have regular work for over two months. Between April 8th and May 1st the decedent had worked eighteen days. He worked practically every working day during that time.

It is conceded that the death resulted from injuries arising out of and in the course of his employment. The errors relied on may be grouped under three heads: (1) That the decedent's employer did not come within the term “employer” under the Workmen's Compensation Act (Code 1931, § 1361 et seq.); (2) that the decedent did not come within the meaning of the term “employee” under that act, because his employment was “purely casual,” and not for the purpose of the employer's trade or business; and (3) that the award and judgment rendered in favor of claimant was not supported by the evidence.

[1] I. It is claimed, first, that, because the church was a charitable and eleemosynary institution, it is not an employer within the purpose of the Workmen's Compensation Act, and that it only applies to industrial pursuits carried on for pecuniary gain. Such was, no doubt, the construction placed upon the original act. We quote with approval the language used by the industrial commissioner in granting the award in this case. He says: “Repugnant to all sense of justice as well as to the impulses of better human nature this provision was long ago eliminated from our law. ‘Pecuniary gain’ is no longer a factor in the limitation of employment relationship in the State of Iowa. We are now assuming that the statute means what it says in imposing compensation obligation on every actual employer, except in employments specifically excluded from the operation of the law.”

The original act in section 2477-m16 (h), Code Supp. 1913, provided that ““‘Industrial employment’ includes only employment in occupation, callings, businesses or pursuits which are carried on by the employer for the sake of pecuniary gain.” (Italics ours.) This statute limited the definition of ““employer” as contended by appellant to a business or pursuit carried on “for pecuniary gain.” The original statute was repealed in 1917 (chapter 270). The present statutes applicable to this case are sections 1361, 1363, and 1421.

Section 1361 provides: “This chapter shall not apply to: 1. Any household or domestic servant. 2. Persons whose employment is of a casual nature. 3. Persons engaged in agriculture, in so far as injuries shall be incurred by employees while engaged in agricultural pursuits or any operations immediately connected therewith, whether on or off the premises of the employer.” 4 refers to employees of municipal corporations, etc., and is not material here.

Section 1421 provides:

“The following definitions of terms shall prevail:

1. ‘Employer’ includes and applies to any person, firm, association, or corporation, state, county, municipal corporation, city under special charter and under commission form of government, school district, and the legal representatives of a deceased employer.

2. ‘Workman’ or ‘employee’ means a person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship, for an employer, except as hereinafter specified.

3. The following persons shall not be deemed ‘workmen’ or ‘employees':

a. A person whose employment is purely casual and not for the purpose of the employer's trade or business.

b. A person engaged in clerical work only, but clerical work shall not include anyone who may be subject to the hazards of the business.

c. An independent contractor.

d. A person holding an official position, or standing in a representative capacity of the employer, or an official elected or appointed by the state, county, school district municipal corporation, city under special charter or commission form of government.”

Section 1363 provides as follows: “Except as provided by this chapter, it shall be conclusively presumed that every employer has elected to provide, secure, and pay compensation according to the provisions of this chapter for any and all personal injuries sustained by an employee arising out of and in the course of the employment [italics ours], and in such cases, the employer shall be relieved from other liability for recovery of damages or other compensation for such personal injury.”

It is apparent from the reading of these sections that the term “employer” is no longer limited to a person engaged in an occupation, calling, business, or pursuit carried on by the employer for the sake of pecuniary gain. Such provision in the original Compensation Act was eliminated by the 37th Gen. Assem. in 1917 (chapter 270).

Appellant contends that Oliphant v. Hawkinson, 192 Iowa, 1259, 183 N. W. 805, 33 A. L. R. 1433, is authority for the rule that, where the business of the employer was not for pecuniary gain, the employee did not come within the terms of the Compensation Act. That case arose in 1916, and under the terms of the act then in force the decision was correct.

Many other cases to the same effect from other states are cited, but on examination we find they do not fit the Iowa Compensation Act, and are not applicable. The provision in the original Iowa act that “‘industrial employment’ includes only employment in occupation, callings, businesses or pursuits which are carried on by the employer for the sake of pecuniary gain ” is no longer the law in this state. “Pecuniary gain” is no longer a factor in the limitation of employment relationship in the state of Iowa. In the construction of the present statute, therefore, we must assume that the Legislature intended to impose the compensation obligation on every employer, except in employments specifically excluded by statute. Under section 1421 the term “employer” includes and applies to any person, firm, “ association,” or corporation referred to in the above-quoted statutes who are not therein excepted from its provisions. The act is no longer limited to an employer engaged in any particular kind of business or occupation except those referred to in the sections quoted. It does not except “associations organized for church purposes.”

[2][3][4][5] The intention of the Legislature must be gathered from the law itself and from the law it supersedes. Prior to 1917, the act applied only to employers engaged in occupation, callings, or business carried on for the sake of pecuniary gain. This provision was stricken out. The courts will not read into a statute words which change their meaning or give a construction thereto contrary to the plain and unambiguous language of the statute itself. Much less will the courts read into a statute words which have long previously been stricken therefrom. Oliphant v. Hawkinson, 192 Iowa, 1259, 183 N. W. 805, 33 A. L. R. 1433;In re License of Motor Vehicles (Iowa) 179 N. W. 609;Heessel v. Creston Nat'l Bank, 205 Iowa, 508, 218 N. W. 298. A statute may not be amended by judicial construction. Pappas v. North Iowa Brick & Tile Co., 201 Iowa, 607, 206 N. W. 146;Hawkeye Portland Cement Co. v. C., R. I. & P. R. Co., 198 Iowa, 1250, 201 N. W. 16;Eddington v. N. W. Bell Tel. Co., 201 Iowa, 67, 202 N. W. 374. It is our conclusion that the term “employer” as used in the present statute is broad enough to include a church ““association,” and we find...