Garrison v. Gortler
| Decision Date | 07 March 1944 |
| Docket Number | 46417. |
| Citation | 13 N.W.2d 358,234 Iowa 541 |
| Parties | GARRISON v. GORTLER. |
| Court | Iowa Supreme Court |
Emmert, James, Needham & Lindgren, Robert H Bush, and Lorna L. Williams, all of Des Moines, for appellant.
A J. Myers, of Des Moines, for appellee.
The appellee owned and operated a building and business, under the name of the R. & L. Grocery, in a residence district of Des Moines. His residence is on the same lot as the grocery store, but in a separate building. The store building was used solely for the retail grocery and meat business. Some time previous to the occurrence involved herein the appellee had a steady employee in the store, but thereafter the store was operated by him with occasional help. He testified that his wife had an interest in it and waited on customers.
The appellant, who lived close to the store, was in the employ of the Iowa Roofing Company, a concern engaged in the roofing business. He apparently was a patron of the store. The appellee had spoken to him several times about the roof of the store building leaking. It had a ridge roof shaped like an inverted letter "V". The appellee pointed out to appellant the places where the roof leaked, and the rain came through on the inside of the store over the shelves of merchandise, the counter, and at other places. The ceiling and the paper on it were spotted and discolored where the rain had been leaking through. Eventually the plaster would be ruined and fall according to the testimony.
On or about October 7th or 8th, 1941, appellant was making some purchases in the store, and appellee again mentioned about the roof leaking, and asked appellant to repair the roof. The latter stated that he had some time off from his regular work and would do the repairing that afternoon. Appellee asked him how much the work would cost and appellant told him that it would depend upon the grade of material he used, but the cost would probably run around $12. The only understanding they had about the labor was that it would run from $3 to $6, depending upon the time used. Appellant received 82.5 cents an hour at his regular work. Appellee furnished and paid for the roofing material and the nails. He also furnished the ladder. There was a leak around a soil pipe, and appellant put some plastic cement about the pipe at appellee's request. The north side was completely re-roofed except for two strips. As appellant was going up the ladder, on the south side of the roof, carrying a forty-pound roll of roofing, and had stepped on the top rung of the ladder, one of the side-pieces of the ladder buckled at that point, because of an old break, throwing appellant to the cement sidewalk below and injuring him. All of the work was done during that afternoon. Appellee did the work on his own time, and not as an employee of the Iowa Roofing Company.
In his application for arbitration the appellant alleged the fact of his employment, the work he did, and his injury, in substance, as stated above. The appellee, in his answer, admitted that the work was done and the injury received, but alleged as defenses that: (1) Appellant was an independent contractor; (2) that the employment was purely casual, and (3) was not for the purpose of the appellee's trade or business. The Commissioner found against appellee on the first defense, and for him on the second and third defenses. The appellee has not cross-appealed from the ruling adverse to him. Since a determination of the third defense, and a holding that the appellant's employment at the time of his injury was for the purpose of the appellee's trade or business is decisive of this case, we do not pass upon the casualness of the employment. There is no dispute about any material fact.
I. Section 1361, of Chapter 70 of the 1939 Code, entitled "Workmen's Compensation", provides that the This section has not been changed by the Legislature since the enactment of the Act by the 35th General Assembly. Chapter 147, Sect. 1(a), Sect. 2477-m, (a), 1913 Code Supplement.
Section 1421, Code of 1939, provides:
The language as it appears in the exception a is just as it appeared in the original enactment. 35 G.A. Chap. 147, sect. 17(b), section 2477-m16(b), 1913 Supp. The 37th General Assembly, Chap. 270, Sect. 10, made a decided change in exception a by striking out the word "and" after "casual" and substituting "or". The 40th General Assembly, Extra Session, House File 42, Sect. 61, Sect. 1421, subd. 3, par. a, Code of 1924, resubstituted "and" for "or", so that the exception now appears as it was originally enacted.
Sections 1361 and 1421, subd. 3, par. a, must be read together, although the latter section controls, and the effect is as though it stood alone.
As the exception is now worded, one, who seeks the benefit of its exclusionary provisions, as does the appellee, must establish that the employment involved is both purely casual and outside the purpose of the employer's trade or business. Tepesch v. Johnson, 230 Iowa 37, 40, 296 N.W. 740; Gardner v. Trustees of M. E. Church, 217 Iowa 1390, 1396, 250 N.W. 740.
The only question for determination on this appeal is: "Was the appellant a person whose employment or work was, at the time of his injury, 'for the purpose of the appellee's trade or business'?" If it was, then the judgment must be reversed. The application of the exception clause found in all definitions of the word, "employee", in all Workmen's Compensation Acts, has troubled the courts of this country and of England, since their enactment. While there is much lack of harmony in the decisions of all of these courts, some of it is more apparent than real, because of the differences in the statutory statements of the exception.
The English Compensation Act, which was enacted in 1897 and has been the model after which all similar legislation in this country has been patterned, in its definition of "employee" or "workmen", excludes "a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business. " (Italics ours) Of this section, the Connecticut court, in construing an identical section in the Compensation Act of that state (Fox v. Fafnir Bearing Co., 107 Conn. 189, 139 A. 778, 779, 58 A.L.R. 861), said: "This language has been construed in numerous English decisions with results that are far from harmonious, and an English judge has said that it was 'one of the most difficult sections of the act'." Most of the legislatures in this country, in enacting workmen's compensation legislation, have departed quite distinctly from the language of the exception in the English act. They have used, instead of the italicized words, language substantially as follows: "a person whose employment is casual and not in the usual course of the trade, business, profession, or occupation of his employer. " (Italics ours) It needs but a reading of the italicized portions of these two quotations to know that the latter exception is more restrictive than the first. In other words, under a reasonable construction of the latter exception more claimants for compensation will be excluded by it, than will be excluded under the reasonable and plain import and intendment of the language of the first exception-the Iowa, Connecticut, and English exception. Such is the conclusion of the Minnesota court. In speaking of this exception in the Minnesota Compensation Act, the wording in which is identical with that in the last above-noted exception, that court, in State ex rel. Lennon v. District Court, 138 Minn. 103, 164 N.W. 366, 368, said: In Carlson v. Miller, 118 Conn. 367, 172 A. 872, 873, 874, the court in speaking of the exception in the Connecticut act and distinguishing it from the exception in the Pennsylvania Act, 77 P.S. § 22, stated that the words "regular course of the business" were "a more restrictive clause than that in section 5223 of our statutes."
To define the terms "course of business", "usual course of business", or "regular course of business", is a difficult thing to do with any certainty or satisfaction. It is largely merely the opinion of the individual definer. This court, in Dial v. Coleman's Lunch, 217 Iowa 945, 949, 251 N.W. 33, 35, said: "Obviously, there is no exact test by which the answer to the question, what constitutes employment in the usual course of one's trade or business? may be ascertained, and each case must, in large measure, be determined according to its own facts."
The Pennsylvania compensation act, in this particular exception uses the words "regular course of the business," etc. of the employer. In Callihan v. Montgomery, 272 Pa. 56, 115 A. 889, 895, a case frequently cited by those courts which give a strict construction and narrow limitation to the terms "usual" or "regular course" of trade or business, in defining and applying the terms, it is said: "The Legislature evidently intended, by the use of the words 'regular course', to give...
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Garrison v. Gortler, 46417.
...234 Iowa 54113 N.W.2d 358GARRISONv.GORTLER.No. 46417.Supreme Court of Iowa.March 7, Appeal from District Court, Polk County; O. S. Franklin, Judge. An action for an award of compensation under the Workmen's Compensation Act. The Deputy Industrial Commissioner, as sole arbitrator, awarded co......