Herbig v. Walton Auto Co.
| Decision Date | 07 April 1921 |
| Docket Number | 33785 |
| Citation | 182 N.W. 204,191 Iowa 394 |
| Parties | SUSAN HERBIG, Appellant, v. WALTON AUTO COMPANY et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Mahaska District Court.--CHARLES A. DEWEY, Judge.
APPEAL from the judgment of the district court affirming the decision of the industrial commissioner of Iowa in favor of the defendant.
Affirmed.
McCoy & McCoy and Burrell & Devitt, for appellant.
McNett & McNett, for appellees.
The appellant is the wife of one Charles Herbig, deceased. After the death of the said decedent, the appellant filed an application for arbitration with the industrial commissioner of the state, claiming compensation under the Workmen's Compensation Act. A committee awarded compensation to the appellant, and the matter was duly prosecuted to the industrial commissioner for review, who reversed the award of the arbitration committee. Thereupon, an appeal was taken to the district court of Mahaska County, Iowa, where the action of the said commissioner was, by judgment of said court, duly approved. An appeal was prosecuted to this court, and said cause was reversed. Herbig v. Walton Auto Co., 186 Iowa 923, 171 N.W. 154. Thereupon, the cause was again tried in the said district court of Mahaska County, Iowa, and judgment rendered in favor of the appellees, affirming the decision of the industrial commissioner previously entered. From such judgment of the district court, this appeal is prosecuted.
The question involved in this appeal was in no way involved in the former appeal. It is not disputed that Charles Herbig met his death through an accident arising out of his employment by the Walton Auto Company. The Walton Auto Company moved its location from one building to another, and the party about to occupy the former location desired to have the upstairs room of the building cleaned out. The Auto Company had left a considerable amount of rubbish at said place, and a salesman for the Auto Company went to the home of the decedent and left word for the decedent to come to the office of the Auto Company, which he did. He reported that he was then engaged on another job, but that, as soon as he got through, he would do the work of cleaning out the room.
It was estimated that the work would have taken a day or a day and a half to complete. Nothing was said about how much he was to be paid, nor how long he was to stay. While engaged in the work, he was bringing a barrel down the stairway, and fell, striking the cement floor, from which injury death resulted.
About three weeks before this time, he had worked for the Auto Company a day and a half or two days, cleaning up the place to which the company was moving, and had been paid $ 3.50 therefor. The industrial commissioner found that the decedent had previously worked for the appellee at irregular and somewhat infrequent intervals, in what might be termed an "odd-job capacity." At various times, he worked two or three hours at a time, but there was no agreement with him as to when he was to work, other than to do these little jobs as the company needed him and employed him to do them.
In regard to his compensation, an officer of the Auto Company testified that he would ask the decedent what the job amounted to, and usually left it to him to fix the price; and that, during the past two years, he had never hired him a full day straight through. He testified that, in the aggregate, decedent probably worked somewhere near three weeks a year for the company in this manner.
The widow of the decedent testified that the Auto Company would send for him at different periods of time, to come down and work for a day or two.
The evidence showed that the decedent had, on one occasion, washed cars for the company; on another, had painted a truck; and on another, had helped clean out the cellar.
The foregoing is the substance of the facts, as found by the industrial commissioner. We have held that the courts will not interfere with the finding of facts made by the industrial commissioner, if the evidence is in conflict or is open to the drawing of different conclusions, even though it may be thought that the findings are erroneous. Norton v. Day Coal Co., 192 Iowa 160, 180 N.W. 905; Pace v. Appanoose County, 184 Iowa 498, 168 N.W. 916; Griffith v. Cole, 183 Iowa 415, 165 N.W. 577; Pierce v. Bekins V. & S. Co., 185 Iowa 1346, 172 N.W. 191.
The question, therefore, for our consideration is whether or not, under these facts, the conclusion of the industrial commissioner and of the district court, that the employment of the decedent was casual and within the exception of the Workmen's Compensation Act, was correct. As originally drawn, the Workmen's Compensation Act of this state, Code Supplement, 1913, Section 2477-m16, in describing those subject to the act, contained this exception:
"Except a person whose employment is purely casual and not for the purpose of the employer's trade or business or those engaged in clerical work only."
The thirty-seventh general assembly, by Chapter 270, Section 10, amended this clause by striking out the word "and" and inserting in lieu thereof the word "or." This made a very vital and substantial change in the meaning of the act. As now written, the law excepts persons whose employment is "purely casual," and also excepts those whose employment is "not for the purpose of the employer's trade or business." Under our statute, as it is now worded, the employment may be for the purpose of the employer's trade or business, but, if it is "purely casual," the law does not apply. On the other hand, if the employment is entirely outside of the purpose of the employer's trade or business, although it may not be casual, it does not come under the statute. This distinction must be borne in mind in examining the authorities. As originally enacted, our statute was similar to the British act. A number of the states still follow the language of that act substantially; others, by original enactment or amendment, conform substantially to our present law.
The reasons for the exception in the statute are obvious. The employer is required to insure his liability under the act, under supervision of the state department of insurance. It evidently was the intent of the legislature that this was not required for employees whose employment was "purely casual," nor for such employees as were not employed "for the purpose of the employer's trade or business."
We had occasion to consider the question of the construction of the term "whose employment is purely casual" in the recent case of Bedard v. Sweinhart, 186 Iowa 655, 172 N.W. 937. In that case, the defendant employed the plaintiff to make some repairs in the way of shingling, and, while he was engaged on that job, requested him to fix a screen door and cellar window at another place. The agreement as to compensation for the shingling was that he was to receive $ 2.00 for each 1,000 shingles laid, and he did $ 5.00 worth of work in 4 days. While engaged in this work, he discovered that some cement was needed on the chimney of the house he had been shingling, and proposed to his employer to get the cement, and he would put it on for nothing. This was done, and, while making the repairs, he received the injury complained of. We said:
Our holding is in line with that of other states that have a similar statute. The Massachusetts statute is like our present statute. In Gaynor's Case, 217 Mass. 86 (104 N.E. 339), the Supreme Court of Massachusetts considered the statute of that state, and pointed out the distinction between it and the English act. In that case, a caterer employed a waiter for a single day or occasion at a fixed wage per day, together with transportation to and from the place of employment. The custom of the catering business was to engage waiters in this manner. The court said:
It was held that the employment was "but casual."
In Blood v. Industrial Acc. Com., 30 Cal.App. 274 (157 P. 1140), it appeared that Blood employed a house painter to apply two coats of paint to his house. Blood was to furnish the painting material, and pay the employee $ 3.50 a day. The employment was not for any definite period of time, but would reasonably have been done within two weeks. It was held that the employment was casual; that it was a mere occasional and incidental contract, not constituted or connected with any regular, systematic, periodic, or certain business.
In Bridger v. Lincoln F. & F. Co., (Neb.) 179 N.W. 1020, the following facts appeared:
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