Otto v. Independent School Dist.

• Decision Date: 29 July 1946
• Docket Number: 46834.
• Parties: OTTO v. INDEPENDENT SCHOOL DIST. et al.
• Court: Iowa Supreme Court

23 N.W.2d 915

237 Iowa 991

OTTO v. INDEPENDENT SCHOOL DIST. et al.

No. 46834.

Supreme Court of Iowa

July 29, 1946

C. G. Lee, of Ames, and T. J. Mahoney, of Boone for appellant.

Miller Huebner & Miller, of Des Moines, for appellees.

SMITH Justice.

Claimant, a school janitor, slipped and fell on an icy sidewalk while going to work. The deputy commissioner, sitting as a board of arbitration, denied his claim for compensation, holding that his resultant injury did not arise 'out of and in the course of his employment.' On review this decision was affirmed by the commissioner and the latter's findings and order were in turn affirmed by the district court.

Claimant asserts: (1) That since the facts were undisputed, the question of compensability was one of law; and (2) that the undisputed facts show his injury arose out of and in the course of his employment. For the purpose of this appeal we assume, without deciding, that the record is such as to present a question of law. But see Davis v. Bjorenson, 229 Iowa 7, 293 N.W. 829. That leaves only proposition (2) for consideration.

It is not necessary to recite the facts in great detail. Claimant's duties as janitor were the usual ones required of janitors of public buildings,--sweeping floors, washing windows replacing fuses and light bulbs, making minor repairs to the heating plant and other equipment; in the summer repairing floors, painting, etc., in preparing the building for opening of school in the fall; and in winter, firing boilers shoveling snow and, when sidewalks were icy, spreading ashes or salt upon them. He locked the building at night and ordinarily unlocked it in the morning.

There had in past years been a written contract of employment which provided that during winter months the building temperature be up to 70 degrees by 9:00 o'clock when school opened. This requirement was still adhered to after the written contract expired.

Claimant had no specified working hours but had learned by experience how early it was necessary to go to work in order to perform his duties. On March 13, 1944, the sidewalks were covered with ice when he arose at 5 o'clock a. m. which was his usual and customary time. On his wife's insistence he put a pair of old socks on over his rubbers. He lived approximately five blocks from the schoolhouse. On his way to work he slipped and fell and suffered the injury complained of.

He was a long-time, faithful employee and required little if any supervision, as he knew what his duties were. At times the superintendent would have him do something and he was subject to the direction of the directors. A few times during his twelve years of employment he had been called upon to perform some service outside of customary hours. However, at the time of his injury he was not responding to any such call and had done nothing at home that morning in connection with his employment. When injured he was on his way to his place of employment at his usual time and in his customary manner.

I. Section 1363, Iowa Code, 1939, (Iowa Code, 1946, section 85.3) makes compensable 'all personal injuries sustained by an employee arising out of and in the course of the employment.' Section 1421, paragraph 6 (Code 1946, section 85.61) defines these words to include 'injuries to employees whose services are being performed on, in, or about the premises * * * and also injuries to those who are engaged elsewhere in places where their employer's business requires their presence and subjects them to dangers incident to the business.'

The words we have italicized above prescribe the only conditions under which injuries suffered en route to and from (but not on) the premises are compensable. Unless it can be fairly said the employee, while going to or from his regular place of work, is engaged in a place where his employer's business requires his presence, his injury en route is not compensable. It does not arise out of and in the course of his employment.

There is of course a difference between 'arising out of' and 'arising in the course of' employment and both must be established to warrant allowance of compensation. Christensen v. Hauff Bros., 193 Iowa 1084, 188 N.W. 851; Kyle v. Greene High School, 208 Iowa 1037, 226 N.W. 71. Text writers and courts are in substantial agreement that 'arising out of' implies some causal relation between the employment and the injury; and that 'arising in the course of' means arising during the period of employment and at a place where the employee may be performing the duties of his employment or doing something incident thereto. See 71 C.J. 649, 659, Workmen's Compensation Acts,§§ 397, 404; 29 R.C.L. 797, Workmen's Compensation Acts, § 89; Bushing v. Iowa Railway and Light Co., 208 Iowa 1010, 1018, 1019, 226 N.W. 719.

A case involving an injury from a 'street accident' suffered while en route to or from work therefore requires a determination whether the employee was engaged in his employer's business at the time, and whether there was causal relation between the injury and such employment. If the first condition be found not to exist it becomes unnecessary to consider the second.

II. The general rule is conceded to be that the course of employment commences after the employee reaches the premises where his actual work begins and is carried on and ceases when he leaves. In stating this general rule the opinion in Kyle v. Greene High School, supra, 208 Iowa at page 1040, 226 N.W. at page 72, seems to confuse the two requisites to compensability ('arising out of' and 'arising in the course of') but the later discussion shows that the court was really considering whether the injury en route arosein the course of the workman's employment. No question seems to have been raised as to whether there was any causal relation between the injury and the employment.

The opinion is clear in its statement of the exceptions to the general rule, viz., that the injury is compensable (as arising out of and in the course of employment) if the employee, when injured, 'is on his way home after performing, or on the way from his home to perform, some special service or errand or some duty incidental to the nature of his employment in the interest of, or under the direction of, his employer.' (Italics supplied.)

It is significant that every case therein cited to illustrate the exceptions involved an injury suffered either while the employee was on a special mission apart from his regular employment--State Compensation Ins. Fund v. Industrial Acc. Comm., 89 Cal.App. 197, 264 P. 514; Stockley v. School Dist., 231 Mich. 523, 204 N.W. 715; Sun Indemnity Co. v. Industrial Acc. Comm., 76 Cal.App. 165, 243 P. 892; Palmer v. Main, 209 Ky. 226, 272 S.W. 736; City of Fremont v. Lea, 115 Neb. 565, 213 N.W. 820; or was engaged in regular work that had no particular situs but required him to travel from place to place--Katz v. A. Kadans & Co., 232 N.Y. 420, 134 N.E. 330, 23 A.L.R. 401; Reese v. Nat'l Surety Co., 162 Minn. 493, 203 N.W. 442; Chandler v. Industrial Comm., 55 Utah 213, 184 P. 1020, 8 A.L.R. 930.

In the Kyle case itself the decision is based squarely on the fact that the employee was going to the schoolhouse on a special service or errand incidental to, but outside the regular duties of, his employment. 208 Iowa at bottom of page 1041 et seq., 226 N.W. at page 73 et seq.

That is not the situation here. Claimant was, when injured, en route from his home to the schoolhouse to commence the performance of his regular duties. He left home at the usual hour and was traversing the regular route of his own selection. He had done nothing that morning in connection with his employment. His work had not commenced.

Three Iowa cases are cited to the proposition that where the employee is engaged in furthering the employer's business he is within the protection of the workmen's compensation law. In none of them was he injured while going to or from the situs of his regular work. They are cases in which the peculiar nature of the employment required the employee to do the thing he was doing at the particular time and place. See Fintzel v. Stoddard Tractor & Equip. Co., 219 Iowa 1263, 260 N.W. 725; Danico v. Davenport Chamber of Commerce, 232 Iowa 318, 5 N.W.2d 619; Linderman v. Cownie Furs, 234 Iowa 708, 13 N.W.2d 677. They are not in point here.

In apparent recognition of the difficulty of bringing appellant's case within any hitherto announced exception to the well-established 'going and coming' rule it is argued that these facts are sufficient: '* * * that it was the duty of appellant to go to the school at about 5:00 A. M. in order to get the school plant ready for the day, that on icy days he had to render the special service of spreading ashes, cinders, or salt on the school walk, that he had no discretion about going, that on the morning of the accident traveling conditions were hazardous and that the injury resulted from such hazardous traveling condition; constituted a special instance taking appellant's case out of the general rule of non-compensability for injuries sustained in going from home to the usual place of work.'

Some of these circumstances would be pertinent to show causal connection between the employment and the injury, if it were established that the injury arose 'in the course of the employment.' But none of them tend, in the slightest degree, to establish the latter requisite.

Four cases from other jurisdictions are cited as announcing exceptions to the general rule justifying appellant's claim here. Gelbart v. New Jersey Federated Egg Producers' Association, 7 A.2d 636, 17 N.J.Misc. 185, perhaps goes farther than any of the others but it still falls short. The employee, Gelbert, had a key to his employer's egg grading...