Hansen v. State

• Decision Date: 28 July 1958
• Docket Number: No. 49431,49431
• Parties: Leatha HANSEN et al., Appellees, v. STATE of Iowa, Appellant.
• Court: Iowa Supreme Court

Page 555

91 N.W.2d 555

249 Iowa 1147

Leatha HANSEN et al., Appellees, v. STATE of Iowa, Appellant.

No. 49431.

Supreme Court of Iowa.

July 28, 1958.

Norman A. Erbe, Atty. Gen. of Iowa, James H. Gritton, Asst. Atty. Gen., for appellant.

Henry W. Wormley, Des Moines, Ben C. Birdsall, Clarion, for appellees.

PETERSON, Justice.

Jack Axel Hansen was deputy sheriff of Wright County from June 20, 1950, to June 3, 1953, when he lost his life in an automobile wreck. He was the only deputy. On June 2nd the sheriff made the suggestion to Deputy Hansen that he take the next morning off to go fishing, and the sheriff would do the same some morning later in the week. He instructed Hansen that he must be back by noon because he was leaving at 12 o'clock for a peace officers' meeting at Iowa Falls. Mrs. Hansen testified her husband planned to go fishing at Clear Lake, Iowa. He loaded his fishing tackle in the car, and left home about 8 A.M. on June 3rd.

He did not return at noon and did not report to the sheriff's office either in person or by telephone at any time during the afternoon.

About 7 P.M., he was driving his car south at a high and excessive speed on highway 69. This was on the direct route from Clear Lake to Clarion. Two miles south of the north line of Wright County he approached an 'S' curve in the road. From the marks on the pavement it appeared his right wheels ran off the west side of the pavement in trying to navigate the curve. In pulling his car back on the pavement, he lost control of the car and shot across to the east side, and off the pavement. Approximately 251 feet from where he drove off the pavement he hit a telephone pole. His car was completely wrecked and Deputy Hansen was killed.

Leatha Hansen, his wife, for herself and on behalf of their only child, John Lee Hansen, a minor, filed claim with the Industrial Commissioner against State of Iowa in accordance with provisions of Section 85.62, 1954 Iowa Code, I.C.A., for payment of funeral expenses in the amount of $300, and for 300 weeks allowance at $28 per week.

Hearing was held before the Deputy Commissioner. He denied the claim on the basis that Deputy Hansen was not killed while performing duties arising out of and in the course of his employment as a law enforcing officer. On appeal, the Commissioner affirmed the decision. Upon appeal to the District Court the decision of the Commissioner and his Deputy was reversed. State of Iowa has appealed.

I. A brief legislative and judicial history as to workmen's compensation liability of the State of Iowa concerning injury or death of peace officers is advisable. The original workmen's compensation act was enacted by the 35th General Assembly in 1913. It contained no law enforcement officer provision. The 40th General Assembly in 1923, Acts 40th Gen.Assem., c. 17, enacted the first step in this direction as follows: 'Any policeman (except those pensioned under the policemen's pension fund created by law), any sheriff, marshal, constable and any and all of their deputies, and any and all other such legally appointed or elected law enforcing officers, who shall, while in line of duty or from causes arising out of or sustained while in the course of their official employment, meaning while in the act of making or attempting to make an arrest or giving pursuit, or while performing such official duties where there is peril or hazard peculiar to the work of their office, be killed outright, or become temporarily or permanently physically disabled or if said disability result in death, shall be entitled to compensation, the same to be paid out of the general funds of the state for all said injuries or disability.' (Emphasis ours.)

In 1935 this court decided the case of Roberts v. City of Colfax, 219 Iowa 1136, 260 N.W. 57. Mr. Roberts lost one eye from the accidental discharge of his revolver when it fell from his pocket while he was engaged in cleaning the floor of the city jail. We held there was no liability because there was no arrest, peril nor hazard involved in the duty he was performing.

As a result of this decision the 51st General Assembly, c. 80, amended the original act, as above quoted, by repealing the italicized words.

The question of the intent of the legislature as to liability of the State of Iowa concerning injury or death of law enforcing officers was not again raised until 1957 when the consolidated cases of City of Emmetsburg v. Gunn (City of Estherville v. Hackett), 249 Iowa ----, 86 N.W.2d 829, came before this court. We held that in view of the action of the 51st General Assembly in striking the above quoted words as to arrest, pursuit, peril and hazard it was the intention of the legislature that any injury or death of a law enforcing officer arising out of and in the course of the officer's employment created workmen's compensation liability on the part of the State.

Although there is no relationship of employer and employee between the State and the peace officer, the legislature by special statutory provision has established liability on the part of the State as to injury or death in line of duty. Chapters 85 and 86 and the pronouncements of this court as to workmen's compensation in private industry and municipalities apply with equal force in connection with liability of the State.

II. The vital question before us is: is there substantial evidence that death did not 'arise out of' and 'in course of' decedent's employment as a peace officer? Or, in other words, was he doing what he 'might reasonably do' and was he where he 'might reasonably be' as a law enforcing officer when fatally injured? We have analyzed these conditions in several cases. Griffith v. Cole Bros., 183 Iowa 415, 165 N.W. 577, L.R.A.1918F, 923; Christensen v. Hauff Bros., 193 Iowa 1084, 188 N.W. 851; Enfield v. Certain-Teed Products Co., 211 Iowa 1004, 233 N.W. 141; Pace v. Appanoose County, 184 Iowa 498, 505; 168 N.W. 916; Walker v. Speeder Machinery Corp., 213 Iowa 1134, 240 N.W. 725; Yates v. Humphrey, 218 Iowa 792, 255 N.W. 639; Crowe v. DeSoto Con. School District, 246 Iowa 402, 68 N.W.2d 63, 65.

In Crowe v. DeSoto, supra, we said: 'Under these conditions, was the injury one that arose out of and in the course of the plaintiff's employment? It is well settled that the words 'arising out of' and the words 'in the course of' are used conjunctively, and so both conditions must exist to bring the case within the statute. * * * It is also well settled that the words 'out of' point to the cause or source of the accident, and 'in the course of' relate to the time and place and circumstances of the injury.'

In Griffith v. Cole Bros., supra, we stated [183 Iowa 415, 165 N.W. 581]: 'The test seems to be whether deceased * * * was doing what 'a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.''

In the case at bar Deputy Hansen was not doing what he should reasonably do, nor was he where he should reasonably be, when the tragedy happened. In the absence of the sheriff, and in accordance with the sheriff's instructions, he should have been in the office or on call in Wright County during the afternoon of June 3rd. Normally he should be home at 7 P.M., subject to any calls for peace officer duty.

III. The burden rests on claimants to prove by a preponderance of the evidence that they are entitled to recover under the provisions of Section 85.62, 1954 Iowa Code, I.C.A. Sparks v. Consolidated Ind. Coal Co., 195 Iowa 334, 190 N.W. 593; Bushing v. Iowa Ry. & Light Co., 208 Iowa 1010, 226 N.W. 719; Otis v. Parrott, 233 Iowa 1039, 8 N.W.2d 708; Crowe v. DeSoto Con. School District, supra; City of Emmetsburg v. Gunn, supra.

In Bushing v. Iowa Ry. & Light Co., supra, we said [208 Iowa 1010, 226 N.W. 723]: 'Under the Iowa act, to justify an award, three things must be shown by the evidence, direct or circumstantial, including the reasonable presumptions and inferences drawn therefrom. These are: (1) That the employee suffered an injury, (2) that the injury was sustained in the course of the employment, and (3) that the injury arose out of the employment. This court does not hold that when an employee dies at his post of duty a presumption arises that the death was one arising out of and in the course of the employment. This is a matter of proof, and the burden is on the claimant.' (Emphasis ours.)

Claimants contend they have carried the burden, and base their case on two grounds: 1. When Deputy Hanson entered Wright County on his return from Clear Lake he immediately and automatically came on duty as a law enforcing officer. 2. His high speed, and the flashing of the red rear light on his car after the wreck, was evidence that he was in pursuit of a law violator and, therefore, in performance of his duty as a law enforcing officer.

As is true in so many workmen's compensation cases we find mixed questions of fact and law involved. We commented on this situation in Crowe v. DeSoto Con. School District, supra, as follows [246 Iowa 402, 68 N.W.2d 65]: 'As so often occurs in matters of this kind, we have a general mixture of questions of fact and law. It is somewhat difficult to distinguish them so as to state which findings of the commissioner are binding upon the court and which are for the court's determination as questions of law. The rule is clear but its application difficult because as here several inquiries involve both questions of law and fact. Here we must pass anew on the law question and determine whether there is substantial support for the commissioner's finding of fact.'

IV. The first contention of claimants that Hansen immediately came on duty when he crossed into Wright County is deduced from the theory that a peace officer is on call seven days a week, twenty-four hours a day. As to whether or not this theory is effective is a question of law. We held in Emmetsburg v. Gunn, supra, that the...