Nelson v. Cities Service Oil Co.

• Decision Date: 15 November 1966
• Docket Number: No. 52319,52319
• Citation: 259 Iowa 1209,146 N.W.2d 261
• Parties: Mary Jane NELSON, Widow of Raymond Nelson, Appellant, v. CITIES SERVICE OIL COMPANY, Employer, and Hartford Accident and Indemnity Insurance Company, Insurance Carrier, Appellees.
• Court: Iowa Supreme Court

Page 261

146 N.W.2d 261

259 Iowa 1209

Mary Jane NELSON, Widow of Raymond Nelson, Appellant, v. CITIES SERVICE OIL COMPANY, Employer, and Hartford Accident and Indemnity Insurance Company, Insurance Carrier, Appellees.

No. 52319.

Supreme Court of Iowa.

Nov. 15, 1966.

Rehearing Denied Jan. 10, 1967.

Robert L. Ulstad, Fort Dodge, for appellant.

Davis, Huebner, Johnson & Burt, Des Moines, for appellees.

RAWLINGS, Justice.

Claimant, Mary Jane Nelson, filed application with the Iowa Industrial Commissioner for arbitration, claiming compensation benefits for death of her husband from his alleged employer, Cities Service Oil Company, and its compensation insurance carrier.

Findings adverse to claimant by the commissioner on review were ultimately affirmed by the district court and claimant appealed.

Under one omnibus assignment of error relied on for reversal claimant asserts as follows: 'Whether considering the whole Record the District Court erred in concluding that the Commissioner who put the burden of proof on the claimant, properly found the decedent was an independent contractor.'

Various 'brief points' are then set forth which, liberally construed, include arguments to the effect the commissioner erred: (1) in placing upon claimant the burden to prove her decedent was an employee and not an independent contractor, and (2) in concluding, under the facts, decedent was an independent contractor.

In any event these appear to present the basic and determinative elements involved in the foregoing assignment which, as closely related propositions of law and fact, will be accordingly considered. Rule 344(a)(4)(b), R.C.P. But see In re Estate of Givens, 254 Iowa 1016, 1027, 119 N.W.2d 191.

Other matters incidentally explored in claimant's brief but neither properly assigned nor argued will be considered only as they inhere in the arguments here entertained.

Counsel for claimant should also bear in mind Rule 344(a)(4)(e), R.C.P. which requires cases decided by this court, cited in briefs, designate the volume and page where found in both the Iowa Reports and North Western Reporter if reported therein.

Accordingly to the record decedent and one Harvey Finney were partners in a dragline operation from April into June 1961, and engaged in digging ditches and basements. On two occasions within this period of time Stewart Newell, a maintenance employee for Cities Service Oil Company, engaged the services of the partnership to dig out and remove some underground gasoline tanks. The partners received $1.50 per hour for their time, plus $10 an hour for the dragline.

Upon termination of the partnership Finney took over the dragline and decedent began operating as a free lance trucker.

About November 29, 1961, Newell, not knowing the partnership had been dissolved, contacted decedent relative to removal of some more underground tanks.

This one job was to be done anytime decedent and Finney desired within that week.

Having no machine and being unable to operate one, decedent then arranged for Finney to do the digging with his dragline.

December 1, 1961, decedent and Finney met at the job site and started work. Newell appeared later and disconnected the pipes leading from the pumps to the tanks, but did not direct or control the work being done by decedent and Finney. Cities Service supplied no equipment for the job. It was a five or six hour project.

During the tank removal operation decedent came in contact with a high voltage electric wire and was electrocuted.

Claimant then billed Cities Service Oil Company and was paid on the same basis as had been charged by the partnership. No social security or income taxes were deducted by Cities Service.

Claimant prepared the 1961 income tax returns for herself and decedent which included his pay from Cities Services. She also paid self-employment tax or social security for her husband, the decedent, as a self-employed person.

Upon this factual situation the deputy commissioner found claimant's husband was an independent contractor at time of death and denied recovery. This finding was affirmed by the commissioner. On appeal to the district court the findings of the commissioner were affirmed. From that final order claimant appealed to this court.

I. Sitting as a sole arbitrator the deputy commissioner, after reciting the factual situation, said in part: 'The principal issue to be decided relates to the defense raised by the Defendants that the deceased was an independent contractor. The Defendants have the burden of establishing a defense by a preponderance of the evidence.'

There followed this finding of fact: 'That Raymond Nelson when killed on December 1, 1961, was an independent contractor as provided by § 85.61(3c) of the Workmen's Compensation Act.' He concluded claimant was not entitled to compensation benefits.

Claimant does not contend the deputy commissioner erred in his findings and conclusions.

But on review the commissioner, after fairly summarizing the record, stated in part as follows: 'Claimant has the burden of proof to show that the deceased was an employee of the City (sic) Service Oil Co. and not an independent contractor. Elliott v. Wilkinson, 248 Iowa 667, 81 N.W.2d 925.'

He then proceeded to make this finding of fact: 'That Claimant has failed to show by a preponderance of the evidence that Raymond Nelson was an employee of City (sic) Service Oil Co. on December 1, 1961.

'That Raymond Nelson was an independent contractor under the provisions of Code § 85.61(3)(b) when he was killed, December, 1, 1961.'

It is at once apparent the commissioner's statement as to burden of proof was erroneous to the extent it purported to place on claimant any duty to show her decedent was not an independent contractor.

This court has consistently held it is a claimant's duty to prove by a preponderance of the evidence he or his decedent was a workman or employee within the meaning of the law, and he or his decedent received an injury which arose out of and in the course of employment. See section 85.61, Code, 1962; Everts v. Jorgensen, 227 Iowa 818, 822--826, 289 N.W. 11; and Reddick v. Grand Union Tea Co., 230 Iowa 108, 114--116, 296 N.W. 800.

And, if a compensation claimant establishes a prima facie case the burden is then upon defendant to go forward with the evidence and overcome or rebut the case made by claimant. He must also establish by a preponderance of the evidence any pleaded affirmative defense or bar to compensation. Crees v. Sheldahl Tel. Co., 258 Iowa 292, 139 N.W.2d 190, 193; Daggett v. Nebraska-Eastern Exp. Inc., 252 Iowa 341, 344--346, 107 N.W.2d 102; Volk v. International Harvester Co., 252 Iowa 298, 302, 106 N.W.2d 649; Elliott v. Wilkinson, 248 Iowa 667, 81 N.W.2d 925; Griffith v. Norwood White Coal Co., 229 Iowa 496, 498, 294 N.W. 741; Featherson v. Continental-Keller Co., 225 Iowa 119, 125, 279 N.W. 432; Everts v. Jorgensen, 227 Iowa 818, 822--826, 289 N.W. 11; Flint v. City of Eldon, 191 Iowa 845, 850, 183 N.W. 344; 100 C.J.S. Workmen's Compensation § 516, page 472; and 58 Am.Jur., Workmen's Compensation, section 433, page 856.

II. So the question now posed is whether the commissioner on review actually determined the case upon an erroneous rule of law as to burden of proof. If he did so we must reverse and recommit the case to him for further proceedings under the correct rule. Travelers Inc. Co. v. Sneddon, 249 Iowa 393, 397, 86 N.W.2d 870, and Flint v. City of Eldon, 191 Iowa 845, 850, 183 N.W. 344.

By the same token a reversal would not here be required if the commissioner inadvertently misstated a rule of law but actually resorted to and correctly determined the case under the proper rule according to the evidence. See Gifford v. Iowa Mfg. Co., 243 Iowa 145, 174, 51 N.W.2d 119.

After misstating, in part only, the rule of law applicable in cases such as this, the commissioner went on to a finding of fact substantially as follows: (1) claimant failed to prove by a preponderance of the evidence decedent was an employee of Cities Service at time of the fatal injury, and (2) it is disclosed by a preponderance of the evidence decedent was an independent contractor at that time.

Although the commissioner did not specifically so declare, it is evident he found claimant had failed to prove by a preponderance of the evidence her decedent was an employee, and the evidence did in fact affirmatively disclose decedent was an independent contractor when he was electrocuted. Under the record he could hardly have found otherwise.

We conclude the commissioner's inadvertent reference to an erroneous rule of law as to burden of proof was not in fact persuasive or controlling in his adjudication, and that he actually determined the case on review in accord with the correct applicable rule.

III. The next question presented is whether there was sufficient competent evidence to support the findings of fact, conclusions and...