Haverly v. Union Const. Co.
| Decision Date | 08 May 1945 |
| Docket Number | 46605. |
| Citation | 18 N.W.2d 629,236 Iowa 278 |
| Parties | HAVERLY v. UNION CONST. CO. et al. |
| Court | Iowa Supreme Court |
C A. Smedal, of Ames, for appellant.
Paul W. Steward, of Des Moines, for appellees.
Action under the Iowa workmen's compensation act against Union Construction Company and Paul Reis, as employer, and Liberty Mutual Insurance Company, insurance carrier, arising out of the death of claimant's husband. Claimant, Agnes Haverly is the surviving spouse of Lyle Haverly, and on January 22 1942, she filed application for arbitration for herself and minor child under the workmen's compensation act, alleging that on or about August 18, 1941, while in the employ of Union Construction Company and Paul Reis, both residents of Iowa, and while employed by said employers near Kingston, Oklahoma, her husband sustained personal injuries arising out of and in the course of his employment resulting in his death. The amended and substituted answer admitted that Haverly sustained fatal injuries while in the employ of the Union Construction Company and Paul Reis, admitted the capacity of the company and Reis as a co-partnership, and that the maximum rate of compensation would apply. The answer further denied that the contract of employment was made in Iowa, but alleged that it was made in the town of Denison, Texas for services to be wholly and exclusively performed in the state of Oklahoma in connection with employer's business and that the provisions of the Iowa workmen's compensation act are not available to claimant and claiming that the Iowa Industrial Commissioner is without jurisdiction to hear and determine the claim. The Deputy Industrial Commissioner, sitting as the sole arbitrator, and the Industrial Commissioner on review, both held that the Iowa workmen's compensation act applied. On appeal the district court reversed the commissioner and his deputy, finding that claimant had failed to establish that there was a contract of employment entered into in the state of Iowa between decedent and the co-partnership employer, which is a condition precedent to the attaching of the jurisdiction of the workmen's compensation laws of the state of Iowa and the jurisdiction and authority of the industrial commissioner, and not sufficient competent evidence in the record to warrant or support the commissioner's findings, decision and award. And the court further found that the work to be performed was to be performed wholly and exclusively outside of the state of Iowa, that the workmen's compensation laws of the state of Iowa did not apply and that the industrial commissioner was without jurisdiction.
The case comes to us on appeal from the district court. The questions presented are: (1) Whether there is evidence in the record to sustain the commissioner's finding that the employment contract was consummated in Iowa; and (2) whether a contract of employment to be performed wholly within another state is governed by the laws of the state of performance.
Since 1932 Agnes Haverly and her husband had lived in Ames, Iowa, where Mr. Haverly was employed by Ben Cole & Son, contractors. He continued in their employ for eight years until he went to Oklahoma. The widow has never remarried. The Union Construction Company is an Iowa corporation with offices in Des Moines. P. C. Fletter is the president of such corporation. Paul B. Reis is an individual engaged in construction work. The corporation and Reis each carried on a separate business but on several occasions had been joint bidders on construction projects and for each of said projects they entered into a separate contract covering the particular project only. There was no general or continuing partnership between them. In 1941 they jointly bid on a project near Durant, Oklahoma, for the construction of a railroad causeway. There bid was successful and on June 10, 1941, before the work was started, they entered into a parnership agreement limited to the one job, the corporation and Reis each continuing to carry on their individual businesses. Since 1937 the only project in which they were jointly interested was this Oklahoma job.
A local office was maintained on the job in Oklahoma. Mr. Reis was superintendent of the work and Anderson, a son-in-law of Fletter, who was also an officer of the construction company, was on the job as timekeeper. Help was employed by both Reis and Anderson and the time record was kept in Oklahoma, one copy being sent to the government, one to the office in Des Moines and one retained in Oklahoma. When the copy arrived in Des Moines that office would reimburse the Oklahoma office for the amount shown but the payroll would come to the Des Moines office for audit and approval. There was evidence that whatever was done on the job, as well as the management and control, had to be approved by the Union Construction Company before anything of importance was done. The office on the job was a temporary structure, but the business of the construction company and Reis as partners was conducted through the Des Moines office of the company. In short, as related by the president of the construction company, the payroll was made in Oklahoma but bills were paid in Des Moines where the books were kept in the office of the Union Construction Company as one of the partners. The temporary office on the job was for convenience and such purposes as checking bills and invoices against materials delivered and making up payrolls. This was the first employment of Haverly by the construction company and Reis.
I. The first proposition to be determined is, was the contract of employment in this case entered into in Iowa? As to this the burden of proof is upon the claimant. Of course in the case of a conflict in the testimony the finding of the commissioner would control. This is true where there are disputed questions of fact in the record. There is jurisdiction on appeal if the commissioner acted without or in excess of his powers, or if the facts found by the commissioner do not support the order or decree, or if there is not sufficient competent evidence to warrant the making of the order. There must be some evidence, either direct or circumstantial, to support the commissioner's finding. In this case there is no direct evidence as to the making of the contract. But the award may be founded on circumstantial evidence and the fair and reasonable inferences to be drawn from the evidence. Everts v. Jorgensen, 227 Iowa 818, 289 N.W. 11. Such circumstantial evidence must be governed by the rules which ordinarily apply to that class of evidence. We have held that a fact is not proved by circumstantial evidence unless the conclusion sought to be drawn is more probable than any other theory. Comparet v. W. H. Metz Co., 222 Iowa 1328, 271 N.W. 847; Jakeway v. Allen, 227 Iowa 1182, 290 N.W. 507; Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425; Latham v. Des Moines Electric Light Co., 229 Iowa 1199, 296 N.W. 372. It is also true, as argued by appellant, that the workmen's compensation statute is to be liberally construed, and where possible evils would result under either of two constructions, that which is to the advantage of the employee must control.
It is the opinion of this court that there was sufficient circumstantial evidence to serve as a basis for the inference on the part of the commissioner that the contract was an Iowa contract. All parties thereto were residents of this state; Haverly being a resident of Ames, the Union Construction Company an Iowa corporation with its place of business in Des Moines, Fletter, the president of the corporation, a resident of Des Moines and acquainted with Haverly from the latter's boyhood, and Reis the partner of the construction company, also a resident of Des Moines and a former resident of Ames. The written contract between the construction company and Reis for the job on which Haverly was employed was entered into on June 10, 1941, at Des Moines. All parties were acquainted and the record shows that immediately before the work was begun decedent left his employment at Ames and went to Oklahoma with his wife, stopping at Denison, Texas, where he met Reis the day before he commenced work.
Appellees assert that the final terms of the employment were entered into at Denison, Texas. There is, however, no evidence that there was any further agreement or any change in the contract of employment at that time. The commissioner was authorized by the facts in evidence to find that there was an understanding prior to his leaving Ames that Haverly was to engage in work on the job in Oklahoma. As to the manner in which the work was carried on, Fletter testified:
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Therefore Haverly, when he took up his new work, shifted from a position in which there had been a certain degree of permanency to one where his permanency of settlement was not assured. The commissioner would be justified in inferring that such a change in decedent's manner of life was a circumstance to be considered as indicating knowledge of the terms of his new employment before he left Iowa. No evidence to the contrary was offered. Reis,...
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