John Deere Waterloo Tractor Works of Deere & Co. v. Derifield

• Decision Date: 19 September 1961
• Docket Number: No. 50335,50335
• Citation: 110 N.W.2d 560,252 Iowa 1389
• Parties: JOHN DEERE WATERLOO TRACTOR WORKS, OF DEERE & COMPANY, Appellant, v. William H. DERIFIELD, James L. Robertson, L. J. Robertson, and Earl R. Jones, Iowa Industrial Commissioner, Appellees.
• Court: Iowa Supreme Court

Page 560

110 N.W.2d 560

252 Iowa 1389

JOHN DEERE WATERLOO TRACTOR WORKS, OF DEERE & COMPANY, Appellant, v. William H. DERIFIELD, James L. Robertson, L. J. Robertson, and Earl R. Jones, Iowa Industrial Commissioner, Appellees.

No. 50335.

Supreme Court of Iowa.

Sept. 19, 1961.

Pike, Hoxie, Butler & Teske, Waterloo, for appellant.

Robertson & Robertson, LaPorte City, for appellees William H. Derifield, James L. Robertson and L. J. Robertson.

Norman A. Erbe, Atty. Gen., and George E. Wright, Asst. Atty. Gen., for appellee Earl R. Jones, Industrial Commissioner.

OLIVER, Justice.

This is a suit for a declaratory judgment, praying that the third paragraph of section 86.21, Code of Iowa 1958, I.C.A., be interpretated as limiting the taking of depositions in workmen's compensation proceedings, to witnesses who live within 100 miles of the place of hearing.

The facts are not in dispute. Defendant William H. Derifield, now a resident of the state of Washington, filed with the industrial commissioner of Iowa, a petition for arbitration of his claim against plaintiff, John Deere Waterloo Tractor Works, of Deere & Company, for occupational disease compensation under the workmen's compensation law, on account of a disease which he alleged was contracted and arose out of and within the scope of his employment with plaintiff at Waterloo, Iowa. Defendants Robertson, attorneys for Derifield, gave notice claimant would take the deposition of Albert R. Allen, M. D., of Selah, Washington, on written interrogatories before a certain notary public at that place. It is agreed Dr. Allen's testimony is desired to show claimant's physical condition or is testimony relating to the cause of his alleged disease.

Thereafter plaintiff instituted this suit for a declaratory judgment adjudging that the applicable statutory provision, viz.: the third paragraph of section 86.21, Code of Iowa 1958, I.C.A., limits the taking of such depositions to those witnesses 'who may live within one hundred miles of the place of hearing.' The trial court adjudged this paragraph should not be interpreted as a limitation on the previously existing statutory right to take depositions of such witnesses in workmen's compensation proceedings who do not live within 100 miles of the place of hearing. Accordingly the court dismissed plaintiff's petition and dissolved a temporary injunction which had restrained the taking of the deposition. Plaintiff has appealed. The question is the right to take such deposition, not the right to use it as evidence. We affirm the judgment of the trial court.

I. The workmen's compensation act was enacted in 1913. I.C.A. § 85.1 et seq. It did not then provide for depositions. In 1917 it was amended by Chapter 409, 37th G.A., to authorize the taking and use of depositions in hearing before boards of arbitration in workmen's compensation proceedings, in the manner provided for depositions in the district court. With some modifications not here important this amendment became section 1444, Codes of Iowa, 1924 and 1927.

Section 1444 of the 1927 Code was amended in 1931 by Chapter 24, Acts of the 44th G.A., by the insertion of a new paragraph between the then second and third paragraphs thereof. We will refer to this added paragraph as the third paragraph. This Code section, with minor modifications, has since been in effect and is now section 86.21, Code of Iowa 1958, I.C.A., which reads as follows:

'The deposition of any witness may be taken and used as evidence in any hearing pending before a board of arbitration or the industrial commissioner or one of his deputies in compensation proceedings.

'Such depositions shall be taken in the same manner as provided for the taking of depositions for use in the district court, and when so taken shall be admissible in evidence in such hearings in the same manner, subject to the same rules governing the admission of evidence as in the district court.

'Either party upon written notice, may elect to take the deposition of a witness, who may live within one hundred miles of the place of hearing, if the testimony of such witness is desired to show the physical condition of the injured party or testimony relating to the cause of injury.

'Application for a commission to take depositions in such case shall be filed in the office of the clerk of the district court of the county wherein the injury occurred.'

II. The third paragraph of Code section 86.21, states: 'Either party * * * may elect to take the deposition of a witness, who may live within one hundred miles of the place of hearing * * *.' (Italics supplied.) The verb 'may' appears in two places in this part of the sentence. The verb 'may' usually is employed as imploying permissive or discretional rather than mandatory action or conduct. It imports a grant of opportunity or power and is never properly used in a denial, a restriction or a limitation, except in connection with the word 'not'. 57 C.J.S. May pages 457-458. A mandatory construction will not be given it unless it plainly appears the legislative intent was to impose a duty and not merely a privilege or discertionary power and where...