Marley v. Orval P. Johnson & Co.

• Decision Date: 25 October 1932
• Docket Number: No. 41451.,41451.
• Citation: 215 Iowa 151,244 N.W. 833
• Court: Iowa Supreme Court
• Parties: MARLEY v. ORVAL P. JOHNSON & CO. ET AL.

215 Iowa 151

244 N.W. 833

MARLEY

v.ORVAL P. JOHNSON & CO. ET AL.

No. 41451.

Supreme Court of Iowa.

Oct. 25, 1932.

Appeal from District Court, Jefferson County; R. W. Smith, Judge.

This proceeding originated under the Workmen's Compensation Law. The Deputy Industrial Commissioner sitting as an Arbitration Board awarded the appellee compensation on account of an injury to and the death of her husband. The award was affirmed by the Industrial Commissioner on review. The district court on appeal affirmed the findings of fact and decision of the Industrial Commissioner. The defendant employer and insurance carrier appeal.

Affirmed.Hallagan, Fountain & Stewart, of Des Moines, for appellants.

Havner, Flick, Huebner & Powers, of Des Moines, and Simmons & Simmons, of Fairfield, for appellee.

DE GRAFF, J.

It is necessary to set out a brief statement of the facts disclosed by the evidence upon which the determination of the important issue of this case rests.

Orval P. Johnson, the appellant, was the sole proprietor of the business, operated under the trade name of “Orval P. Johnson & Company,” engaged in selling coal, sand, cement, and the manufacture and sale of cement blocks, and in addition engaged in cement work as a contractor in Fairfield, Iowa.

In the summer of 1930, Johnson had a contract to dig a trench and lay therein a concrete base for a stone coping to be placed around a burial lot, known as the Frame lot in the public cemetery in the city of Fairfield, Iowa. Work was started in excavating the trench on the morning of August 20, 1930, after which Johnson went up town to hire some one to help with the work. He met E. E. Marley, the deceased, who had worked for him on previous occasions, and hired him to work on this particular job. Nothing was said about the means whereby Marley was to be transported to the cemetery which was about a mile distant. Marley resided about three blocks from the cemetery. He reached the working place at the cemetery between 9 and 10 o'clock that morning, arriving there in his own Ford automobile, which he parked not far from the Frame lot. Marley proceeded with the work in assisting two other employees of Johnson, one of whom, Wright, appears to have been sort of a “straw boss.” During the afternoon of this day, Johnson came to the place to inspect the work and saw Marley's car parked west of the Frame lot. The employer had provided a Ford truck for the men to ride in to and from the place and to convey the tools and equipment necessary for the work and to haul the dirt from the excavation. There was no enforced rule that the workmen should ride to and from the working place in this truck and Johnson had no objection to Marley's use of his own car in transporting himself to and from the place of work. The entire cemetery is a series of hills and the roadways are somewhat steep. Marley had made seven trips to and from the Frame lot, four on the day he commenced work and three on the following day and on all but one trip to the place had parked his Ford car near the Frame lot headed down hill. On the afternoon of August 21, 1930, word was relayed to the workmen to go to Johnson's shop or yard down town when the trenching work was finished so that the equipment used for mixing concrete and pouring it could be made ready by them for the next day's work. This trench was completed about 5 o'clock in the afternoon. The rate of wage paid the men, including Marley, was to be 40 cents per hour and ten hours constituted a day's work. Wright was the only workman on this job who had been in the continuous employment of Johnson for the year immediately preceding. Marley had been employed on various other occasions by Johnson, generally for unloading coal. The other man, Finger, was a new employee. Wright and Finger had used the Ford truck belonging to Johnson in going to and from the Frame lot. At about 5 o'clock on August 21, 1930, after the tools and equipment had been loaded, by the men, into the truck, Wright and Finger left with it to go to the Johnson yard down town. Although there was nothing said by Marley that he was going to Johnson's yard and finish out the day's work there, as instructed by Johnson, it must be assumed that such was his intention in the absence of any evidence to the contrary. Under the conditions existing, it is reasonable to presume that Marley would go in his own car from the place it was parked, near the Frame lot, to Johnson's yard, as he had about one more hour to work on that day, and was still in the course of his employment.

Johnson arrived at the Frame lot to inspect the work some time after 5 o'clock and found the men had gone from there. He saw a car down the hill, where it had crashed into a monument. He went down to the place and found Marley lying on the ground some 6 feet from the car and badly injured. On being questioned when found by Johnson, Marley said that he had cranked his car; that it had run over him; and that he had crawled to the place where he was lying. The car was about 120 to 130 feet down hill from the Frame lot. It appeared to have left the driveway on the north side, ran through the grass, and struck the monument. While the record does not show that the car referred to as having crashed against the monument was identified as the Ford car belonging to Marley, it appears that in the hearing it was taken for granted that it was Marley's car. Marley died soon after from the injuries received in this accident.

But two questions are to be decided by this court: (1) Did the injury received by Marley and which caused his death, arise out of and in the course of his employment by Johnson? (2) Was the wage earned by Marley in this employment sufficient to sustain the amount of weekly compensation awarded? Before arriving at a determination of these questions, it is necessary to consider the proceedings leading up to this appeal. After the arbitration hearing, at which all of the evidence in the record was introduced, the Deputy Industrial Commissioner filed his decision on January 19, 1931, reading as follows:

“Upon the record it is held:

(1) That E. E. Marley met his death August 21, 1930 in an accident arising out of and in the course of his employment by the defendant employer.

(2) That the deceased's average weekly wage at the time of his fatal injury was $23.07.

(3) That Ina G. Marley, claimant herein, is the widow of the deceased E. E. Marley, and as such qualifies as the sole compensation beneficiary.

Wherefore, the defendants are hereby ordered to pay the claimant $13.84 a week for 300 weeks, payment starting as of the death of the workman. In addition thereto the defendants are ordered to pay the statutory burial benefits and the costs of the hearing.”

This decision was filed in accordance with the requirement of section 1446, Code of 1927, which provides as follows: “The decision of the board of arbitration, together with a statement or certificate of evidence submitted before it, its findings of fact, rulings of law, and any other matters pertinent to questions arising before it, shall be filed with the industrial commissioner.”

From the record it appears that the decision referred to and a transcript of the evidence introduced at the arbitration hearing were all of the documents filed with respect to the requirements of section 1446. It will be noticed that the “findings of fact” and “rulings of law” were not separately stated in the holding numbered “(1)” of the decision as was apparently contemplated by section 1446.

In due time a petition for review by the industrial commissioner was filed and after the case was submitted, tried and argued before him upon the record previously made, his review decision was duly filed, which for our purpose reads in part, as follows: “E. E. Marley, husband of the claimant, was fatally injured in the service of the defendant employer, August 21, 1930, at Fairfield, under circumstances substantially as follows: For a considerable period the deceased had worked intermittently for this company. The day previous to his injury he had been taken on for temporary service and sent to the Fairfield Cemetery to assist in digging a trench for concrete coping around a burial lot. He worked the remainder of that day and most of the following. This job was completed late in the afternoon of the second day and the deceased was advised to report to the shop, as the employer testifies ‘so we could pour concrete the next morning.’ Marley had been using his own car in going to and returning from this work. When the job was finished, two fellow workmen set out for the shop in a truck belonging to the employer that had been used in the cemetery work. Shortly thereafter Johnson had occasion to go to the cemetery. There he found Marley in a badly injured condition due, as the record shows, to the incident of cranking his car which, headed down an incline, ran over him as the engine started. Death was the early result.”

Since it is manifest from the record that the injury and death of E. E. Marley arose out of and in the course of employment and that the arbitration finding as to the award is in accordance with the law and the facts, the arbitration decision in all the findings is affirmed. While the record here does not show what contentions were raised by appellants' counsel, in this review, against the decision of the arbitration board, it must be assumed that at least two important questions were presented: (1) That Marley's injury did not arise out of and in the course of his employment; and (2) that the wage earned by him in the employment was not sufficient to sustain the weekly compensation awarded.

The industrial commissioner's “Review Decision” was filed in accordance with section 1448, Code 1927, which reads as follows: “The decision of the industrial commissioner in any case on review before him shall be in writing, filed in his office, and shall set forth his findings of fact and...