Hassebroch v. Weaver Const. Co.

• Decision Date: 14 December 1954
• Docket Number: No. 48614,48614
• Citation: 67 N.W.2d 549,246 Iowa 622
• Parties: Etta HASSEBROCH, Appellant, v. WEAVER CONSTRUCTION COMPANY, Bituminous Casualty Corporation, Appellees.
• Court: Iowa Supreme Court

Page 549

67 N.W.2d 549

246 Iowa 622

Etta HASSEBROCH, Appellant, v. WEAVER CONSTRUCTION COMPANY, Bituminous Casualty Corporation, Appellees.

No. 48614.

Supreme Court of Iowa.

Dec. 14, 1954.

Rehearing Denied Feb. 11, 1955.

K. C. Christianson, Jewell, and Leming & Hobson, Hampton, for appellant.

C. A. Williams, Jr., Oskaloosa, for appellees.

GARFIELD, Chief Justice.

We observe at the outset that appellant's opening brief disregards rule 344, Rules of Civil Procedure, 58 I.C.A., in that it contains no statement of the case, the facts, or errors relied on for reversal. The argument contains only three references to the record--two to testimony of one witness, the other to the trial court's judgment. The volume and page in the Iowa Reports are not given for some of the cases cited, as required by rule 344(c). A reasonable effort should have been made to comply with rule 344.

The controversy before the deputy industrial commissioner as sole arbitrator and the commissioner upon review was whether claimant's decedent, Ervin Hassebroch, was, at the time he was fatally injured, an employee of defendant Weaver Construction Co. or an independent contractor. Both the deputy and commissioner found he was not an employee but an independent contractor and denied compensation. The district court held there was sufficient competent evidence to warrant the commissioner's decision and affirmed it. Claimant has appealed to us. We affirm the district court.

Although we have frequently called attention to the functions of the industrial commissioner and the court in cases of this character it seems desirable to do so once more. '* * * In the absence of fraud the findings of fact made by the industrial commissioner * * * shall be conclusive.' Section 86.29, Code 1954, I.C.A. Insofar as here applicable section 86.30 provides any decision of the commissioner 'may be modified, reversed, or set aside on one or more of the following grounds and on no other: * * * 3. If the facts found by the commissioner do not support the order or decree. 4. If there is not sufficient competent evidence * * * to warrant * * * the order or decision.' There is no claim of fraud here.

In our latest pronouncement regarding these statutory provisions, Bocian v. Armour & Co., 244 Iowa 304, 306, 56 N.W.2d 900, 901, 902, Smith, C. J., we say:

'We have repeatedly and consistently construed these provisions as making the commissioner's finding of fact conclusive where the evidence is in dispute or reasonable minds may differ on the inference fairly to be drawn from the facts. Taylor v. Horning, 240 Iowa 888, 890, 38 N.W.2d 105; Bruner v. Klassi, 241 Iowa 1007, 1011, 44 N.W.2d 366; Reynolds v. George & Hoyt, 230 Iowa 1267, 1271, 300 N.W. 530; Lindhal v. L. O. Boggs Co., 236 Iowa 296, 307, 18 N.W.2d 607, are some of the more recent cases. The real test is the sufficiency of the evidence to support the finding. (Citations.) The finding of the commissioner is on the same footing as a jury verdict. (Citations.)'

Some decisions other than Bocian v. Armour & Co., supra, and the four cited therein which hold the commissioner's findings of fact are conclusive where the evidence is in dispute or reasonable minds may differ on the inferences fairly to be drawn therefrom are: Schmidt v. Pittsburgh Plate Glass Co., 243 Iowa 1307, 1316, 55 N.W.2d 227, 232; Yergey v. Montgomery Ward & Co., 239 Iowa 258, 264, 30 N.W.2d 153, 155; Reddick v. Grand Union Tea Co., 230 Iowa 108, 114, 296 N.W. 800, 803, and citations; Everts v. Jorgensen, 227 Iowa 818, 828, 289 N.W. 11; Gardner v. Trustees of Main St. M. E. Church, 217 Iowa 1390, 1401, 250 N.W. 740; Enfield v. Certain-Teed Prod. Co., 211 Iowa 1004, 1008, 233 N.W. 141; Norton v. Day Coal Co., 192 Iowa 160, 162, 180 N.W. 905.

Gardner v. Trustees of Main St. M. E. Church, supra [217 Iowa 1390, 250 N.W. 745], states: 'It is the settled law of this state that, although there is no conflict in the evidence, if the facts are such that different conclusions can reasonably be reached therefrom, then the question becomes one of fact for the determination of the commissioner. Can we say, as a matter of law, that all minds would reasonably reach the same conclusion under the evidence in this record, * * *. If not, then the question was one of fact for the determination of the industrial commissioner, and his findings thereon are final.'

Reddick v. Grand Union Tea Co., supra [230 Iowa 108, 296 N.W. 803], says: 'Where the facts are in dispute, or where reasonable minds may differ on the inferences fairly to be drawn from the proven facts and circumstances, the findings of the commissioner are conclusive. And this is true even though the court might arrive at a different conclusion from the evidence. If the evidence presents a question which should have been submitted to the jury, if the trial were before a jury, then the court is bound by the findings of the commissioner.' (Emphasis added.)

The Gardner and Reddick cases, just quoted from, have been followed several times.

See also 27 Am.Jur., Independent Contractors, section 60; 57 C.J.S., Master and Servant, § 617a. (5) which says: 'Where the facts are in dispute or they are susceptible of more than one inference, the question is one of fact * * *. Where the facts are undisputed and the evidence is reasonably susceptible of but a single inference, the question whether the relationship of employer and independent contractor exists is one of law for the court.'

A few of our more recent precedents, not under the compensation act, which point out that an issue should be submitted to a jury where the evidence is such that reasonable minds may reach different conclusions therefrom are Anderson v. Elliott, 244 Iowa 670, 673, 57 N.W.2d 792, 794 ('It is a question not only of whether there was a conflict in the evidence, but whether, even as to undisputed facts, they are such that reasonable minds might differ in interpreting them; * * *'); Schneider v. Parish, 242 Iowa 1147, 1151, 49 N.W.2d 535, 537; Hebert v. Allen, 241 Iowa 684, 687, 41 N.W.2d 240, 242; Davis v. Knight, 239 Iowa 1338, 1341, 1342, 35 N.W.2d 23, 25; In re Estate of Coleman, 238 Iowa 768, 771, 28 N.W.2d 500, 503; Lawson v. Fordyce, 234 Iowa 632, 636, 12 N.W.2d 301, 303; Odegard v. Gregerson, 234 Iowa 325, 329, 330, 12 N.W.2d 559, 561.

Unless, then, it can be said as a matter of law from the record here that claimant's decedent was an employee, not an independent contractor, at the time of his fatal injury, there is no ground for interfering with the commissioner's decision. We think there is sufficient competent evidence to warrant the decision that decedent was an independent contractor and it cannot be held as a matter of law he was an employee.

Decedent's status depends upon a determination of the facts or the reasonable inferences to be drawn therefrom and not, as in Mallinger v. Webster City Oil Co., 211 Iowa 847, 234 N.W. 254, and some of our other precedents, the construction of a written contract which is a matter for the court. See Yergey v. Montgomery Ward & Co., supra, 239 Iowa 258, 266, 30 N.W.2d 153, 156; Taylor v. Horning, 240 Iowa 888, 890, 38 N.W.2d 105, 107. The facts here are quite unlike those in the Mallinger case, supra.

56 C.J.S., Master and Servant, § 13, says: 'Ordinarily, the determination of the relationship of master and servant is a question of fact, but the question of the relation created by a written contract * * * is ordinarily one of law for the court, * * *.'

The compensation act provides an independent contractor shall not be deemed an employee. Section 85.61, subsection 3, par. b, Code 1954, I.C.A. Since the act does not define 'independent contractor' we have uniformly held it necessary to resort to the common law for its meaning. Taylor v. Horning, supra, and citations, at page 891 of 240 Iowa, at page 107 of 38 N.W.2d.

The term 'independent contractor' is defined and explained in Mallinger v. Webster City Oil Co., supra, 211 Iowa 847, 234 N.W. 254; Meredith Pub. Co. v. Iowa Employment Security Comm., 232 Iowa 666, 672-675, 6 N.W.2d 6, 10, 11, and citations; Sanford v. Goodridge, 234 Iowa 1036, 1042, 13 N.W.2d 40, 43, where we say, 'An independent contractor is one who, by virtue of his contract possesses independence in the manner and method of performing the work he has contracted to perform * * *.'

The principal accepted test of an independent contractor is that he is free to determine for himself the manner in which the specified result shall be accomplished. Article by Maurice H. Merrill, 32 Iowa Law Review 1, 19, and citations. See also McDonald v. Dodge, 231 Iowa 325, 328, 1 N.W.2d 280, 282, and citations; 56 C.J.S., Master and Servant, § 3(3). This and other tests are enumerated in Mallinger v. Webster City Oil Co., supra, 211 Iowa 847, 851, 234 N.W. 254, and several later decisions which quote from it. Such other tests are, in substance: the existence of a contract for a certain piece of work at a fixed price, independent nature of his calling, his right to hire and supervise assistants, his obligation to furnish necessary tools and equipment, the time for which he is employed, the method of payment--whether by the job or by time, whether the work is part of the employer's regular business. See also 56 C.J.S., Master and Servant, § 3(2).

Restatement, Agency, section 220, sets out nine matters of fact which, with others, are considered in determining whether one is an employee or independent contractor. They are about the same as the tests given in the Mallinger case, supra, with this addition: whether or not the parties believe they are creating the relationship of master and servant. Comment b under section 220 states 'it is for the triers of fact to determine whether or not there is a sufficient group of favorable factors to establish the relationship.'

We will refer to the testimony, some of which supports the commissioner's conclusion decedent was an...