Heiliger v. City of Sheldon
| Decision Date | 03 April 1945 |
| Docket Number | 46616. |
| Citation | 18 N.W.2d 182,236 Iowa 146 |
| Parties | HEILIGER v. CITY OF SHELDON et al. |
| Court | Iowa Supreme Court |
Diamond & Jory, of Sheldon, for appellant.
Miller Huebner & Miller, of Des Moines, for appellees.
The facts have been settled by stipulation. The city of Sheldon has a population of less than five thousand, and under the authority of Code, section 5766, it adopted and made effective an ordinance organizing a fire department, to consist of not more than fifteen active members, and certain special members, all to be appointed by the Council upon the taking effect of the ordinance, with additional members thereafter, to be named by the Fire Chief, subject to the approval of the Council. All officers are chosen from the active members, such officers being a fire chief appointed by the Council, and an assistant fire chief and other officers appointed by the chief subject to the approval of the Council. For cause the chief may be removed by the Council and any other member or officer may be removed by the chief for like cause, subject to the approval of the Council. The chief, and, in his absence, the assistant chief, has full charge and authority at all fires over all members and officers, and the latter are required to 'perform such duties at or in connection with such fires as may be designated by the Fire Chief, or Assistant Fire Chief, then in charge.' The ordinance provides that the compensation of the chief shall be $180, and that of the assistant, $50 a year, 'and all members * * * answering roll call for each and every alarm of fire shall be the sum of $2 for the actual attendance and work, at or in connection, with any fire within the city,' the chief and assistant being entitled to the same in addition to their yearly pay. The chief is required to keep a suitable book record of the names, ages and residences of all members, and their fire attendance.
The claimant was injured at a fire on June 1, 1943, as a result of which he was totally and temporarily disabled for a period of eight weeks, and incurred medical expense of the reasonable value of $85. The award of the deputy commissioner, adopted by the commissioner, was for eight weeks disability at $15 a week, and for medical services in the sum of $85.
The record of claimant's becoming a member of the fire department is as follows: 'December 14, 1931, at a regular meeting of the City Council of the City of Sheldon, Iowa, Fire Chief Hons proposed the names of * * * and Joe Heiliger as additional members of the Fire Department and asked approval of their membership.' Motion for their approval having been made and seconded and the roll called, the record continues: 'All present voting in the affirmative, the motion is declared carried and their membership approved and accepted.' The claimant continued as such active member until his injury. There was no other arrangement or proceeding had between claimant and the city with respect to claimant's becoming or continuing a member of the fire department. There was no formal contract, oral or written, setting out the terms of the relationship, the duration thereof, the compensation, or the duties, obligations or rights of claimant. During the year preceding the injury claimant attended twenty-seven fires for which he received $54, being the same attendance and remuneration as that of the other members, except the chief and his assistant received their yearly remuneration in addition. This remuneration of the members and the chiefs was as much or more than that received by members and chiefs of other such or similar fire departments in the vicinity of Sheldon. At the time of the injury, and before and after, the appellee, Casualty Company, was the workmen's compensation insurance carrier for the city under a standard policy, as required by statute. In computing the premium paid on the policy in force at the time of the injury, and on policies issued before and after that time, the remuneration paid the members of the fire department was not taken into consideration, or counted as a part of the payroll of the city, or earnings of the employees thereof.
Assuming and believing volunteer firemen were not covered by the Workmen's Compensation Act, the city purchased of the appellee, Casualty Company, such an accident policy as is authorized by section 5767.1 of the 1939 Iowa Code, which policy was in effect at the time of the injury to claimant. Under said policy the insurance carrier has paid claimant the benefits he was entitled to thereunder for his injuries.
The city had no such 'firemen's pension fund' as is mentioned in Code section 1361(4).
It was also stipulated that the salary of the marshall of Sheldon for the year next preceding the day of the injury was $1650, to which the defendants objected as being incompetent, irrelevant and immaterial and not a proper basis or criterion for computing a rate of compensation for claimant.
Appellant relies for reversal upon three assigned errors which may be condensed into the complaint that the court erred in holding he was not an employe of the city, under contract, within the meaning of the Compensation Act, and particularly Code, section 1421(2), and further erred in holding appellant was an 'official' of the city under subdivision 3d of said section 1421, and therefore excluded from the Act.
Attorneys for appellant state: 'We must confess that it is a difficult proposition to write an argument inasmuch as this is a case of first impression so far as the Iowa courts are concerned, and we have been unable to find any authorities from other states sustaining our contention.' They concede that there was no express contract between claimant, as a member of the volunteer fire department, and the city as his employer, but contend that an implied contract of employment can be read into the ordinance we have summarized, and the proceedings had thereunder in the acceptance of claimant as a fireman.
They also contend that it is to be implied from Code, section 1361(4), that firemen, of the class of claimant, not entitled to benefits from a 'firemen's pension fund,' are within the protection of the Compensation Act. Their argument being that, if, as urged by appellees, no firemen are within the coverage of the Act, it was unnecessary to specifically provide that firemen entitled to pension benefits were not covered by the Act.
The particularly pertinent sections of the Act relied on by the parties are:
Section 1390, which has to do with the compensation schedule, provides that compensation shall be upon the basis of sixty percent of the average weekly earnings but not to exceed fifteen dollars 'nor less than six dollars per week, except if at the time of his injury his earnings are less than six dollars per week, then he shall receive in weekly payments a sum equal to the full amount of his weekly earnings.'
(Italics are ours.)
'Section 1421. Definitions. * * * 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. * * * b. * * * c. * * * 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 1422. Peace officers. This section provides that any policeman (except those pensioned under the policemen's pension fund created by law), any sheriff, marshall, constable, and all their deputies, and any other legally appointed or elected lawenforcing officers, killed or disabled in the line of their duty, or the dependents of any such officer, shall be entitled to compensation, to be paid out of the general funds of the state.
...
To continue reading
Request your trial