Johnson v. City of Albia
| Decision Date | 15 February 1927 |
| Docket Number | 37737 |
| Citation | 212 N.W. 419,203 Iowa 1171 |
| Parties | GUST JOHNSON, Appellee, v. CITY OF ALBIA, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JULY 1, 1927.
Appeal from Monroe District Court.--F. M. HUNTER, Judge.
Proceedings under the Workmen's Compensation Act. The claim of plaintiff was resisted by the defendant on the ground that his employment had fully terminated before the occurrence of the accident from which he suffered. This contention presents the sole issue in the case. The industrial commissioner awarded compensation, and this award was confirmed by the district court. From the order of the district court the defendant appeals.
Reversed.
John F Abegglen and Bates & Dashiell, for appellant.
Mabry & Mabry, for appellee.
FAVILLE J. STEVENS, DE GRAFF, ALBERT, and MORLING, JJ., concur. VERMILION, J., takes no part. EVANS, C. J., dissents.
On November 15, 1923, the plaintiff was in the employ of the defendant, as the engineer in charge of its pumping plant. He had been engaged in such employment for the seven years preceding. On the morning of November 15th, he notified the chairman of the waterworks committee that he would terminate his services that evening. Pursuant to such notice, the committee immediately made arrangements with one Seibert, to take the job thus to be vacated by the plaintiff. The plaintiff operated the engine and pumps until 7:15 P. M., at which time he had the tanks filled. At that hour, he left the plant for home. On the way home, he met Seibert, and advised him where he would find the key. Under plaintiff's contract of employment, he was furnished with a residence near the plant, and with a place to keep his cow and his portable garage. He had vacated the residence on November 15th, and had moved his family into another house down town. This latter was the residence to which he came, after leaving the plant at 7:15 P. M. There still remained upon his employer's premises his cow, his portable garage, and a car therein, and his tools, consisting of a sledge, a screwdriver, and three wrenches. He testified in this proceeding as follows:
Upon the foregoing testimony of the plaintiff himself, the defendant predicates its contention that the relation of employer and employee between plaintiff and defendant was fully terminated on the evening of November 15th. The accident under consideration occurred on the morning of November 16th. The plaintiff returned to the plant at eight o'clock that morning, solely for the purpose of getting his tools. He found Seibert there, and found him in trouble with the machinery. He was unable to start one of the pumps. This pump had a defective valve, which required a peculiar manipulation in order to start it. This defect was explained by the plaintiff to Seibert. Seibert requested the assistance of the plaintiff to start the pump. He went into the pump house and into the pit where the pumps were located, for the purpose of rendering such assistance. While engaged in such attempt, he was accidentally caught in some gearing, and lost his left arm as a result. The tools which plaintiff left at the pump house on the evening of November 15th were his personal property, and the necessary tools which he used in the operation of the plant. He testified that he left them there on that evening so that they might be used in case of necessity. So far as appears, they were the only tools at the plant which were available for use at the time the accident occurred, on the morning of November 16th. The purpose of the plaintiff in going to the plant on the morning of November 16th was solely to get his tools and to make preparations for removing the rest of his property, and incidentally to milk his cow.
The trial court decided the case solely on the ground that a fact question was involved, and that the order of the industrial commissioner was conclusive on the court. If there is a disputed question of fact, the decision of the commissioner is binding on the court. The conclusions of law of the commissioner on undisputed facts are, however, proper questions for the determination of the court. Three questions appear to be involved: (1) Was the employee still within the scope of his employment, at the time of the injury, when he returned to get his tools? (2) Did an emergency arise at the time which called for assistance to the new engineer, and clothed him with sufficient authority to bind the city in employing the workman at that time? (3) Is there evidence of such a custom among engineers that the out-going engineer shall assist the incoming one as made the workman an employee at the time?
I. Was appellee still an employee under his original employment?
At the time the injury occurred, Code Supplement of 1913 was in force, and Section 2477-m16, Paragraph b, is as follows:
"'Workman' is used synonymously with 'employee,' and means any person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship for an employer."
In Knudson v. Jackson, 191 Iowa 947, 183 N.W. 391, we considered this paragraph of the statute in considering the meaning of the word "employee," and in said case reviewed the authorities at length, and held that we cannot enlarge the provisions of the statute, and that an employee, within the meaning of this act, "in order to come under this statute, must have a contract of service, express or implied, with the employer who is sought to be charged with liability." The question at once, then, in the case is whether or not the appellee, at the time of the injury, to wit, on November 16th, had a contract of employment, express or implied, with the appellant. According to his own testimony, he had quit on the 15th of November. He had notified the waterworks committee of the city council, in the forenoon of that day, that he would quit, and he turned in his key. There is no claim that he was ever employed by the city council thereafter. He came to the place of his employment for a purely personal reason, namely, to secure his tools that were located on the premises. He did not come there to assist the new engineer or to do any work. At the request of the new employee, he attempted to assist him in the operation of the machinery on the place. This was purely voluntary on his part. There is no intimation in the record that any person authorized to engage employees for the city even so much as knew that the appellee was on the premises, and there is no suggestion that anyone in behalf of the appellant requested, or in any manner authorized, the appellee to assist the regular employee of the appellant who was then in charge of the work.
The appellee places great reliance upon the following quotation from 1 Honnold on Workmen's Compensation 373, where the rule is stated as follows:
"An employee is under the protection of the Compensation Act even after his discharge, providing he be injured upon the premises of the employer while remaining there for reasons connected with his former employment."
This quotation from Honnold is supported by a single case in the footnote, to wit, Goering v. Brooklyn Min. Co., 2 Cal. I.A.C. Dec. 124. In that case, an employee, a few minutes after being discharged, was cleaning up his work, preparing to leave the premises. He was injured by an accident, and it was held that such accident occurred in the course of his employment, and that he was entitled to compensation. Neither the text nor the authority sustaining it is broad enough to support the appellee's contention in the instant case. It is obvious that a different situation is presented where, without the knowledge of the former employer, a discharged employee, the next day or later, after he has left the premises and terminated his contract of employment, re-enters the premises for purposes of his own, and voluntarily assists the new employee in performing his work.
Reliance is also placed upon the case of Molloy v. South Wales Anthracite Colliery Co., 4 B.W.C.C. 65, C. A. In that case, the workman was a colliery repairer. He was ordered to do certain work which he declined to do, and left off work. He returned later, and obtained from the manager leave to go down into the mine and bring up his tools; and while in the mine for said purpose, was injured by a falling stone. The lower court found that the manager, on dismissing Molloy, ordered him to fetch his tools, and that the accident arose out of and in the course of his employment. The record in the case shows that, upon oral submission in the appellate court, counsel for the employer merely asked "that the case should be sent back, in order that the judge may consider whether all the facts are before this court, or a ruling by this court that, if the evidence in fact was given substantially as the employers say it was, as in fact appears on the judge's notes, then the judge has misdirected himself in holding that the accident 'arose out of and in the course of' the man's employment." They further stated:
"What my clients desire is that the facts may be stated in such a way that our real...
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