Kunkel v. Eastern Iowa Light & Power Co-op.

• Decision Date: 27 October 1942
• Docket Number: 46034.
• Citation: 5 N.W.2d 899,232 Iowa 649
• Court: Iowa Supreme Court
• Parties: KUNKEL v. EASTERN IOWA LIGHT & POWER COOPERATIVE.

5 N.W.2d 899

232 Iowa 649

KUNKEL v. EASTERN IOWA LIGHT & POWER COOPERATIVE.

No. 46034.

Supreme Court of Iowa

October 27, 1942

Glenn D. Kelly and Carleton E. Kelley, both of Davenport, for appellant.

Waldo M. Wissler, of Davenport, for appellee.

BLISS Justice.

There is but one matter to which we need direct our attention, and that is the complaint of the appellant respecting the adverse rulings of the trial court on the issue of prior adjudication by the Unemployment Compensation Commission that the appellee was employed by one other than appellant.

The abstract sets out no evidence. It contains only the pleadings and other filings, and matters of record. On October 3, 1939, the appellee filed his petitions in two separate actions. One was against the appellant alone. He alleged therein that the appellant had employed him as an electrical engineer about May 15, 1936, and as a part of the transaction had orally agreed to buy his stock, tools, and other equipment, for $800; that appellant gave him employment, but refused to accept the property sold or to pay for it. He prayed for damages for the breach of contract.

The other action was against the appellant and the executrix of the estate of John P. Hand, deceased. He alleged that about May 15, 1936, he was orally employed, by appellant's manager, with Hand, to assist said parties in constructing transmission lines, at a stipulated wage and mileage for travel, for an indefinite period; that on August 31, 1937, there was a balance owing him of $6.89; that for services performed and expenses between September 1, 1937 and November 8, 1937, there was owing him the sum of $335.61 and that for overtime from November 8, 1937, to about May 1 1938, he was entitled to $231.20. On motion of the parties the court ordered the actions consolidated on November 1, 1940. At this time the appellee dismissed the action as to the executrix. On March 13, 1941, appellant filed one answer in the combined actions. It is quite long, but so far as pertinent, denies the alleged agreements, and in paragraphs III and IV stresses the alleged fact that the appellee had been in the employ of John P. Hand during all the times involved. In paragraphs V and VI appellant, as further answer, alleges as a complete defense, estoppel, by decision and judgment, and by res judicata, because of the decision of the Commission. In support of these last two paragraphs, appellant attached thirteen interrogatories directed to the appellee. Attached to the answer is Exhibit "A", being a copy of the decision of the Commission on the appeal of the appellant from the finding of the "Appeal Tribunal," allowing the appellee's claim for benefits. It appears from this exhibit that on May 29, 1939, the appellee filed his claim for benefits under the Iowa Unemployment Compensation Law. The exhibit does not show the averments of this claim, and neither does the abstract. They appear in appellee's argument. Disregarding the latter, we go to the statute and find that the unemployed individual shall be eligible to receive benefits only if the Commission finds (Code section 1551.10): (A) He has registered for work as required by the Commission. (B) He has made a claim for benefits in accordance with section 1551.12 (A). (C) He is able and available for work. (D) "Prior to any week, in any benefit year, for which he claims benefits he has been totally unemployed for a waiting period of two weeks * * *." (E) "He has within the first four out of the last five completed calendar quarters immediately preceding the first day of his benefit year, earned wages in employment by employers equal to not less than fifteen times his weekly benefit amount."

We may assume that appellee's claim alleged these statutory requisites. In any event, it was necessary only for the Commission to find that these five essentials had been established in order to allow the claim of appellee. Exhibit "A" discloses that the initial determination by the deputy, on July 25, 1939, was a denial of the claim. Appellee appealed therefrom stating that: "No wage record appears for myself for period from July 1, 1937 to January 1, 1939, with the exception of $11.54 shown in the third quarter of 1938. I claim that I was employed by the Eastern Iowa Light & Power Cooperative of Davenport, Iowa, under the direction of John P. Hand, Chief Engineer." The "Appeal Tribunal," on August 22, 1939, reversed the deputy and allowed the claim. The power company then appeared and appealed. Whether any notice thereof was served upon Kunkel does not appear. We find no provision for such notice in the statute. Division E of Code section 1551.12 provides that the Commission shall promptly notify the interested parties of its findings and decision on any appeal to it, or on any review on its own motion.

The hearing on this appeal of the power company before the Commission was at Des Moines, on September 11, 1939. As the able and experienced Judge Jackson found, this was an ex parte hearing. The decision of the Commission states: "* * * no appearance representing the worker; Glenn D. Kelly, Attorney, representing the employer; and S. N. Jordan, Manager, representing the employer; and Ralph Fay, witness for the employer." It was strictly an ex parte hearing, with no one represented but the power company. John P. Hand was not represented. He had died on March 30, 1939. His widow, who was also executrix of her husband's estate, was not there, and so far as the record shows, she was never notified of the hearing. In this situation, without any opportunity to be heard on the part of Kunkel, or the Hand estate, the Commission found and decided:

"That the claimant performed services for John P. Hand, who had a contract for engineering services with the Eastern Iowa Light & Power Cooperative. That John P. Hand is a defined employer under Section 1551.25F for the years 1936, 1937, 1938 and until the time of his decease in 1939. That under Section 1551.25E the Eastern Iowa Light and Power Cooperative Co. is not required to file reports or pay contributions on the earnings of any individuals in the employ of said John P. Hand. That the claimant will receive benefits based on his earnings with John P. Hand. * * *

"That the administrator of the John P. Hand estate will be required to file reports and pay contributions on all the employees of the deceased John P. Hand for the years 1936, 1937, 1938 and until the time of his decease in 1939.

"* * * That the said John P. Hand entered into an oral contract of hire with the claimant, Edward M. Kunkel. That said oral contract provided that the claimant would receive a salary of $150 a month. That the claimant started to work on approximately May 15, 1936, and, with the exception of a few temporary layoffs, was so employed until May 1939. The testimony of competent witnesses shows Mr. John P. Hand had eight or more men employed for some portion of fifteen different days, each such day being in a different calendar week in 1936. The Eastern Iowa Light & Power Cooperative has submitted an operating account showing that John P. Hand had eight or more men employed for part of fifteen different days, each such day being in a different calendar week in 1938. That the said John P. Hand died early in 1939 and the evidence shows that he was an independent contractor with authority and full power to select, employ and control his own employees."

This decision was made on the 18th day of October, 1939, and on the same day copies of it were mailed to both the appellee and appellant herein.

On March 27, 1941, the appellee filed a motion to strike certain parts of the appellant's answer, including paragraphs V and VI containing the res-judicata allegations, and the exhibits referred to therein, and the interrogatories attached to the answer. The court, with Judge Scott presiding, on June 18, 1941, sustained the motion as to the matters above noted. The cause came on for trial on December 8, 1941, and on December 10, 1941, the plaintiff-appellee dismissed that part of his action on which he claimed $800 as damages for failure on the part of the appellant to accept and pay for the electrical stock, tools, etc., of the appellee, and at the same time dismissed that part of his action based upon overtime wages earned after November 8, 1937. After these dismissals the only claim for which the appellee asked judgment was a balance of $6.89, owing on August 31, 1937, and the sum of $325.75 for wages earned, and $9.86 for traveling expenses, for the period commencing on September 1, 1937, and ending on November 8, 1937. The verdict and judgment was for just this amount--$342.50. We call particular attention to this period of time by italicizing the words.

It will be noted, on reference to Code section 1551.25F (1), that an employer, as defined in this legislation, must have had in his employment eight or more individuals for some portion of a day in each of fifteen different weeks within either the current or the preceding calendar year. The Commission found, as noted above, that Hand was such an employer only during the calendar years 1936 and 1938. There is no showing of proof, or finding that Hand was such an employer, under Chapter 77.2, during any part of the year 1937, and if he was not such an employer the Commission had no jurisdiction to make any adjudication with respect to him or his employees during that year.

Furthermore as we have already noted, Code section 1551.10 specifies the five essentials to be established by an unemployed individual in order to procure compensation benefits. The last essential noted in the section which the Commission must find is that the unemployed individual "has within the first four out of the last five completed calendar...