Pace v. Appanoose County

• Decision Date: 30 September 1918
• Docket Number: 31747
• Citation: 168 N.W. 916,184 Iowa 498
• Parties: RUTH PACE, Appellant, v. APPANOOSE COUNTY, Appellee
• Court: Iowa Supreme Court

168 N.W. 916

184 Iowa 498

RUTH PACE, Appellant, v. APPANOOSE COUNTY, Appellee

No. 31747

Supreme Court of Iowa, Des Moines

September 30, 1918

Appeal from Appanoose District Court.--F. M. HUNTER, Judge.

AN appeal was taken to the district court by the claimant, as widow of decedent, from the dismissal of her claim by the Iowa Industrial Commissioner, reversing the award of the committee of arbitration. On hearing, the decision of the commissioner was affirmed, without prejudice to an action by the administrator of decedent's estate against the county. The claimant appeals.

Affirmed.

Wilson & Smith, for appellant.

G. A Hodgman, M. H. Cohen, and H. S. Greenleaf, for appellee.

LADD J. PRESTON, C. J., EVANS and SALINGER, JJ., concur.

OPINION

LADD, J.

I.

A bridge in Appanoose County collapsed, and John F. Pace, who was driving an engine over it, was killed. This occurred on July 9, 1914. He had entered into an agreement with that county, April 15th preceding:

"That for the consideration of $ 14 per day for each and every day's work on the public highway of Appanoose County, Iowa, the party of the first part employs the said second party with his team and engine and use one county grader on the county highway for the working season; and the said second party agrees to do said work and also to furnish his team and engine for the above amount stated, and further agrees to give entire satisfaction to said first party, said first party agreeing to furnish gasoline for the engine. Second party is to furnish one man with team, ten hours be considered a day's work."

Fairly construed, this was a written employment of Pace, with engine, man, and team, by the county, for the lump sum of $ 14 per day of 10 hours. The terms, conditions, and provisions of the Employers' Liability and Workmen's Compensation Act are obligatory upon the county, as well as upon those employed by it (Par. c of Section 2477-m of the Code Supplement, 1913); and one of the issues in this case is whether the injury arose out of and in the course of the employment by the county. If so, this must be conclusive from the evidence; for, when the evidence bearing thereon is in conflict, the conclusion of the Industrial Commissioner is final. In other words, the courts may not interfere with the findings of fact made by the Industrial Commissioner, when these are supported by evidence, even thought it may be thought there be error. The evidence on which the Commissioner concluded that Pace's injury did not arise out of and in course of his employment, if such there were, is not conflicting, nor, as we think, is it open to different inferences to be drawn therefrom. Buckalew was employed by him, and either drove the team hauling oil, which the county furnished, or operated the engine in pulling the grader. Later, Strauser also was employed by Pace in these capacities. For some days prior to Pace's death, they had attended to the engine and the oil wagon, while Pace was engaged in repairing another engine. It appears that he had two engines, one about double the weight of the other; and, after using the larger engine between two and three weeks, on what is known as the State Road, extending west out of Centerville, the engine needed repairing; and thereupon it was set aside, and the smaller engine used by the employees in grading, while Pace repaired the larger engine. In the meantime, the grading was done to the bridge,--which was some 85 feet long,--save a little work required on the east approach. The smaller engine had been driven over the bridge in the morning of July 9th, and the grader had been left about 1 1/4 miles west of it. The grading to be done was about a mile farther on. The large engine had been brought to the east end of the bridge in the morning; and, as the smaller engine was thought not to be heavy enough, upon his arrival, somewhat after 7 o'clock A. M., Pace started the larger one over the bridge, with the design of going to and attaching it to the grader and proceeding with the work of grading, in pursuance of the contract; but whether he intended to continue in charge of the engine or to have one of the employees do so, does not appear. The point, however, is quite immaterial; for if taking the engine from its position at the east end of the bridge to the grader arose "out of and in the course of" the employment under the contract, the circumstance that an employee of his might operate the engine, later on, did not change the character of what he had done. If what he did was of the character stated, the fact that he did not expect to operate the engine indefinitely, or beyond a definite point, would not change it; and what may have been intended with respect to who should operate the engine after reaching the grader, is without bearing on the issues presented. Pace gave about one third of his time to the work, and kept in close touch with what was being done. One Meirs was employed by the county to handle the grader. It was his business to "shape up" the road, and see that it was properly graded. He would attract the attention of the engine operator by ringing a bell, and by motion indicate any change desired in the direction of the grader.

This evidence shows without conflict that the place of doing the work was certain highways, which were to be improved. The engine was an instrumentality made use of in accomplishing the work to be done. Its removal from one portion of the highway to another, as this was required in the process of grading, was merely incidental to that work. It had been stopped, not by way of abandonment for another, but for the purpose of being repaired, and with the design of attaching it to the grader as soon as this should be accomplished. When repaired, it was being moved from the place in the highway where it ceased hauling the grader on its way, to where the grader then was, with the intention of continuing the work in pursuance of the requirements of the contract. The movement of the engine from one portion of the highway to another was merely incidental to the performance of the work in grading the road, and apparently an essential part of it. Hauling the grader was the work contemplated by the contract, but to do this, some movements of the engine unattached were reasonably necessary, and, as said, incidental to performing the work contemplated. While being repaired, the small engine had been used, and the grading done up to the bridge approach, but this was not completed; so that, when Pace started, the engine was on a portion of the highway not finished, and he was attempting to drive it to the grader, about a mile and a quarter farther on, in order to proceed with the grading. Even if it were to be said that only the portion of the highway uncompleted might be regarded as the place of his employment, Pace was at such place, and was doing that which was incidental to the very work he was engaged to do.

The cases quite generally recognize a distinction between "arising out of" and "in the course of his employment," though, in several jurisdictions, the phrase "arising out of" has been omitted from the enactment. In Bayer v. Bayer, 191 Mich. 423 (158 N.W. 109), the phrase "in the course of employment" was construed as though including "arising out of," found in the acts of other states. The distinction, however, is noted in State v. District Court of St. Louis County, 129 Minn. 423 (151 N.W. 912), and has been recognized in England. Fitzgerald v. Clarke & Son (1908) 2 K. B. 796; Moore v. Manchester Liners, 3 B.W.C.C. 527. In McNicol v. Patterson Wild & Co., 215 Mass. 497 (102 N.E. 697), the court clearly draws the distinction:

"It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act, and with precision exclude those outside its terms. It is sufficient to say that an injury is received 'in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It 'arises out of' the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation, as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It needs not to have been foreseen or expected, but after the event, it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."

The same question was under consideration in Bryant v. Fissell, 84 N.J.L. 72 (86 A. 458), where the court said:

"It remains to be considered whether the accident arose both 'out of and in the course of his employment.' For an accident to arise out of and in the course of the employment it must result from a risk reasonably incidental to the employment. As was said by Mr. Lord Justice Buckley, in Fitzgerald v. Clarke & Son (1908) 2 K. B. 796: 'The words "out of" point, I think, to the origin and cause of the accident; the words...