Mitchell v. Consolidated Coal Co.

• Decision Date: 06 March 1923
• Docket Number: 35310
• Citation: 192 N.W. 145,195 Iowa 415
• Parties: CARRIE MITCHELL, Appellee, v. CONSOLIDATED COAL COMPANY, Appellant
• Court: Iowa Supreme Court

192 N.W. 145

195 Iowa 415

CARRIE MITCHELL, Appellee, v. CONSOLIDATED COAL COMPANY, Appellant

No. 35310

Supreme Court of Iowa, Des Moines

March 6, 1923

Appeal from Monroe District Court.--D. M. ANDERSON, Judge.

THE appellee is the surviving spouse of William H. Mitchell, and as such was awarded compensation under the Iowa Workmen's Compensation Act, for the death of her husband. Her claim was approved and allowed, upon hearing before the board of arbitration. Said allowance was then reviewed by the Iowa industrial commissioner, and by him affirmed. From this finding the defendant appealed to the district court, by which the award was again and finally sustained. Defendant again appeals.

Affirmed.

Mabry & Mabry, for appellant.

Clarkson & Huebner, for appellee.

WEAVER J. PRESTON, C. J., STEVENS and DE GRAFF, JJ., concur.

OPINION

WEAVER, J.

The statement in this case may be materially abbreviated by quoting at the outset the statement of counsel for appellant that the sole and "only question in dispute is whether or not the relation of employer and employee existed between the defendant company and the deceased." It is not denied that deceased had been employed in the defendant's mine, but it is insisted that, at the time of his injury, he had been discharged from the service, and that the relation of employer and employee, as contemplated by the statute, was completely terminated. The injury was received by the deceased while going down the "manway" into the mine on November 15, 1920. While thus engaged, he fell in such a manner as to wound or injure his hand upon the hook to his miner's lamp, the injury thus received becoming infected, and causing his death. It appears that, on or about November 1, 1920, deceased was ordered discharged from his employment, but within a few days was reinstated, and resumed work. Further friction seems to have arisen between him and the company, and it is claimed by defendant he was again discharged on or about November 10th. Concerning the matter of such employment from November 10th to November 15th inclusive, there is considerable confusion in the testimony; but it appears fairly certain that Mitchell was intending to quit defendant's employment, and had negotiated for other employment in another mine. That such was his intention seems to have been understood by both parties; but there prevailed a custom in such employment by which a miner quitting his job, as a condition of receiving pay for work done, was required to "square up" his room by "shooting off" the corners and "loading out" the coal which is down, or which results from "squaring up" his room, and regularly until this is done and his work measured, his tools remain in the mine. When all is done according to rule or custom, the foreman allows him a car with which his tools are brought to the surface. It is argued for the appellant that Mitchell was unconditionally discharged on November 10th; that after that date he neither did nor intended to do any further work or to perform the customary duty of cleaning up his room; and that, in fact, his tools had been removed from the mine on the morning of November 15th, before he received the alleged injury. We think, however, that this contention by counsel cannot be said to have been established as a matter of law, and that the conclusion of the arbitration board, the industrial commissioner, and the district court to the contrary was upon a fair question of fact, the finding of which in the claimant's favor has sufficient support in the record. A fellow workman testified that Mitchell lost two days between the 10th and 15th of November. His wife testified that he went to the mine on the morning of the 15th, to "square up his work and quit," and that, when he returned home, his hand was hurt. He had not then drawn his pay for work done, such payment being later made to the wife. Just before his hurt, a witness met him going down the "manway." In reply to a question, he said to the witness that he was going after his tools. As he passed, witness heard him fall; and in response to an inquiry whether he was hurt, he said he had stuck his lamp hook into his hand. An officer of the company, speaking of the custom prevailing with employees of the mine, says:

"When...