Mallinger v. Webster City Oil Co.

• Decision Date: 13 December 1929
• Docket Number: 39903
• Citation: 234 N.W. 254,211 Iowa 847
• Parties: LILLIAN MALLINGER, Appellant, v. WEBSTER CITY OIL COMPANY et al., Appellees
• Court: Iowa Supreme Court

234 N.W. 254

211 Iowa 847

LILLIAN MALLINGER, Appellant, v. WEBSTER CITY OIL COMPANY et al., Appellees

No. 39903

Supreme Court of Iowa, Des Moines

December 13, 1929

OPINION ON REHEARING JANUARY 20, 1931.

Appeal from Webster District Court.--T. G. GARFIELD, Judge.

Action under the Workmen's Compensation Act of Iowa, commenced by Lillian Mallinger, as the surviving spouse of W. B Mallinger, to recover compensation for his death. The usual arbitration committee was waived, and the case in the first instance was ruled by the deputy industrial commissioner to the effect that the said W. B. Mallinger, deceased, was an independent contractor, and compensation, therefore, was denied. A petition for review of the finding was duly and timely filed with the industrial commissioner, the review resulting in an affirmance. An appeal was then taken to the district court of Iowa in and for Webster County, on the grounds (a) that the facts found by the industrial commissioner do not support the finding and order made by him; and (b) that there is not sufficient competent evidence in the record to warrant the making of the order, as made by said commissioner. The trial court sustained the industrial commissioner, and judgment was accordingly entered. From this judgment, the claimant, Mrs. Lillian Mallinger, appeals.

Reversed.

V. L. Sharp, C. J. Rosenberger, and F. F. Messer, for appellant.

H. B. White and Havner, Flick, Huebner & Powers, for appellees.

DE GRAFF, J. FAVILLE, C. J., and STEVENS, ALBERT, MORLING, KINDIG, and WAGNER, JJ., concur. EVANS and GRIMM, JJ., dissent.

OPINION

DE GRAFF, J.

This is a workmen's compensation case. The finding of the deputy industrial commissioner contains this language:

"Upon the record, it is held that W. B. Mallinger was engaged in the capacity of an independent contractor on December 8, 1926, the date of his fatal injury, and was not at that time an employee of the Webster City Oil Company, within the meaning of the Compensation Law."

In the decision on review, filed by the industrial commissioner, who affirmed the aforesaid ruling, this language is found:

"December 8, 1926, W. B. Mallinger, husband of this claimant, lost his life at a railway crossing. The question involved herein is as to whether or not this death arose out of employment by the Webster City Oil Company."

The commissioner answered in the negative, and held that Mallinger was an independent contractor.

The instant appeal is from the judgment entered by the district court of Iowa in and for Webster County, wherein the ruling of the industrial commissioner was affirmed. Is there evidence in the record from which the commissioner could find that deceased was an independent contractor? This cause in this court is not triable de novo. In the last analysis, the question presented is one of law, to be determined in the light of the signed contract between Mallinger, the deceased, and the Webster City Oil Company, together with other competent evidence offered and introduced before the industrial commissioner, which was transcribed on appeal to the district court.

It is difficult at times to differentiate between findings of fact and findings or conclusions of law. Probably no better rule can be devised than that announced in Village of Weyauwega v. Industrial Commission, 180 Wis. 168 (192 N.W. 452):

"Whether a finding is an ultimate fact or conclusion of law depends upon whether it is reached by natural reasoning or by the application of fixed rules of law."

In other words, where the ultimate conclusion can be arrived at only by applying a rule of law, the result so reached embodies a conclusion of law, and is not a finding of fact. Under the instant record, we will make answer to the decisive question involved, to wit: Was Mallinger an employee, within the meaning of the Iowa Compensation Law, or was he an independent contractor, under the rule and tests of the common law? If Mallinger was an employee, within the definition of the Compensation Act (Section 1421, Par. 2, Code, 1924), then the claimant (his widow) is entitled to the relief prayed. If, on the other hand, Mallinger was an independent contractor, the claimant (his widow) is not entitled to relief, and for the reason that the Compensation Act specifically excludes an independent contractor from the relief otherwise granted by the act. (Section 1421, Par. 3 (c), Code, 1924.)

An "employee," under the Compensation Act, "means a person who has entered into the employment of, or works under contract of service, express or implied, * * * for an employer * * *." Section 1421, supra. It will be observed that the employment or work must be under a contract of service, "and when so, this brings the employee within the purview of the remedy provided; and that the relation of contract for service is excluded from the terms of the act." Pace v. Appanoose County, 184 Iowa 498, 168 N.W. 916, l. c. 508. To avoid the defeating of the terms of the Compensation Act, the general assembly enacted:

"No contract, rule, regulation, or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this chapter, except as herein provided." Section 1378, Code, 1924.

At the outset, it may further be observed that the general assembly of Iowa, in the enactment of Section 1421, Par. 3 (c), did not define the term "independent contractor," used in said act. However, this court has held that the term "independent contractor" does, despite the liberal interpretations of the act, retain its commonlaw meaning, and is still to be given the meaning that courts have always given the term. Norton v. Day Coal Co., 192 Iowa 160, 180 N.W. 905. This means that the tests of the common law are applicable, and none other.

Before passing to the analysis of the written contract in question, it may be well to examine and analyze the usual legal tests that are adopted by courts in determining whether or not a person classifies as an independent contractor, under the facts and circumstances of a given case. The term has a fairly well defined meaning under the decisions of many jurisdictions, including our own. An independent contractor, under the quite universal rule, may be defined as one who carries on an independent business, and contracts to do a piece of work according to his own methods, subject to the employer's control only as to results. The commonly recognized tests of such a relationship are, although not necessarily concurrent, or each in itself controlling: (1) the existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) independent nature of his business or of his distinct calling; (3) his employment of assistants, with the right to supervise their activities; (4) his obligation to furnish necessary tools, supplies, and materials; (5) his right to control the progress of the work, except as to final results; (6) the time for which the workman is employed; (7) the method of payment, whether by time or by job; (8) whether the work is part of the regular business of the employer. If the workman is using the tools or equipment of the employer, it is understood and generally held that the one using them, especially if they are of substantial value, is a servant.

In In re Estate of Amond, 203 Iowa 306, 210 N.W. 923, the Workmen's Compensation Law was involved, and the question was whether the decedent, who was a teamster, was an employee or an independent contractor at the time he received the injury resulting in his death. The opinion presents an exhaustive discussion of the distinction between an employee and an independent contractor, and cites and reviews many decisions bearing on the proposition involved. The court concluded that the deceased teamster was an independent contractor. This court, in the foregoing decision, speaking through Stevens, J., said:

"Does the employee represent the master as to the result of the work only, or as to the means by which the result is obtained? If as to the result, and in the employment of the means he acts entirely independently of the master, he must be regarded as an independent contractor."

In the instant case, the evidence indisputably shows that the employer not only directed the means, but furnished the means to Mallinger to carry out his contractual obligation; that Mallinger had no business or occupation other than that prescribed in his contract, and did in fact devote his entire time and energy to the Webster City Oil Company, and did not act independently of the oil company's business in any way.

We will now analyze the provisions contained in the contract in question between Mallinger and the Webster City Oil Company. The evidence offered, over proper objections, by the Oil Company de hors the contract is matter of legal conclusion only, and does not impeach the fair import and meaning of the written contract.

The contract was entered into on August 1, 1925. Mallinger was to be paid a fixed commission by the oil company for his services in the sale and distribution of the oil company's products, to wit: gasoline, kerosene distillate, oil, grease, and denatured alcohol in certain described territory in the vicinity of Webster City, Iowa. The oil company agreed to furnish the tank truck, measuring buckets, funnels, etc., necessary to the handling of the above-named commodities. The oil company was to keep the truck in proper repair, and such repairs "must be made in the company's shop, unless otherwise authorized." The oil company agreed to furnish gasoline, oil, and grease for the use of the tank truck while Mallinger was selling and distributing the above-named products. The contract stipulated the commission for retail...