Kent v. Kent
| Decision Date | 06 April 1926 |
| Docket Number | 37361 |
| Citation | 208 N.W. 709,202 Iowa 1044 |
| Parties | OLLA KENT, Appellee, v. FRED V. KENT et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED DECEMBER 16, 1926.
Appeal from Wapello District Court.--W. M. WALKER, Judge.
The plaintiff petitioned the industrial commissioner for an arbitration of her claim for compensation under the Workmen's Compensation Act. The cause was heard before a deputy commissioner, who denied compensation; and on review by the commissioner, this order was affirmed. The district court, on appeal, reversed the order of the commissioner, and awarded plaintiff compensation. The defendants appeal from the award so made.
Affirmed.
Miller Kelly, Shuttleworth & McManus, for appellants.
Chester W. Whitmore, for appellee.
The facts are not in dispute. The appellee was employed in a grocery store, as cashier and bookkeeper, at clerical work only. Her duties were performed on a raised platform some 8 feet above the main floor of the store, which was reached by a steep flight of steps 18 inches wide, with steps 8 inches in width, 10 inches apart, and with no risers between the steps. At the time of the injury complained of, appellee was descending the steps. A platform scale was standing on the floor of the store beneath the stairway, with its arm projecting through the stairway from the rear, and partially covering one of the steps. Appellee was tripped by the arm of the scale, and injured. The amount to which she would be entitled, if entitled to compensation at all, was conceded.
I. Appellant questions the sufficiency of the notice of appeal to the district court from the decision of the commissioner. The question is raised for the first time in this court, and cannot be considered.
II. Section 2477-m16, Code Supplement of 1913, in force at the time of the injury, provided, in part, as follows:
"In this act unless the context otherwise requires: * * * 'Workman' is used synonymously with 'employee,' and means any person who has entered into the employment of, or works * * * for an employer, except * * * those engaged in clerical work only, but clerical work shall not include one who may be subjected to the hazards of the business * * *"
The statute is not happily worded; but its evident purpose was, and its effect is, to first exclude from the operation of the Compensation Law, as a class, employees engaged in clerical work only, and then to extend the benefits of the law to those of the excluded class who, notwithstanding the fact that their employment is clerical only, are, nevertheless, subjected to the hazards of the business of the employer.
The facts of this case and the manner of its presentation here require us to determine only that the benefits of the act are extended to an employee of the excluded class when the injury complained of proximately results from, or is occasioned by, a hazard of the business; and our decision goes no further than this.
It is conceded by counsel for appellee that she was employed in clerical work only, and that the commissioner properly so found. The sole contention of appellee is that her injury was occasioned by a hazard of the business. It is further conceded, as we think it must be, that the phrase "hazards of the business" means the hazards of the employer's business,--not a hazard incident to the clerical employment of the employee. The business of the employer was the operation of a grocery store. The inquiry is, therefore, whether appellee's injury was proximately caused by a hazard of her employer's business of conducting a grocery store, as distinguished from a hazard incident merely to her clerical employment.
The industrial commissioner found that it was not so caused. It is contended that the finding of the commissioner was conclusive upon the court below, and is conclusive upon this court.
The finding of the commissioner upon disputed facts is on the same footing as the verdict of a jury. Flint v. Eldon, 191 Iowa 845, 183 N.W. 344; Sparks v. Consolidated Ind. Coal Co., 195 Iowa 334, 190 N.W. 593. His finding is conclusive, if the facts found by him support the finding, and if there is competent evidence to warrant the order made. Section 17, Chapter 270, Acts of the Thirty-seventh General Assembly; Rish v. Iowa Portland Cement Co., 186 Iowa 443, 170 N.W. 532; Springsteel v. Hanford Produce Co., 195 Iowa 1057, 191 N.W. 851; Parkinson v. Brown-Camp Hdw. Co., 195 Iowa 519, 192 N.W. 420. But if the facts found do not support the order, or if there is not sufficient competent evidence to warrant the commissioner in making the order or decree, it may be set aside by the court. Rish v. Iowa Portland Cement Co., supra; Bidwell Coal Co. v. Davidson, 187 Iowa 809, 174 N.W. 592; Sparks v. Consolidated Ind. Coal Co., supra.
As we have said, there is no dispute as to the facts; but we are of the opinion that they do not support the conclusion of the commissioner that the injury to appellee was not caused by a hazard of the employer's business. If it be conceded that the stairway, as constructed, from its use merely to reach the place where appellee performed her purely clerical work was no more a hazard of the grocery business than the platform on which or the appliances with which she performed such work, that is not the end of the inquiry. Appellee's injury was not caused by the stairway alone, but by the combination of the open steps in the stairway and the projecting arm of the platform scale. The scale was a thing in no manner connected with appellee's clerical employment. Obviously, its...
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