Pattee v. Fullerton Lumber Co.

• Decision Date: 17 December 1935
• Docket Number: 43199.
• Citation: 263 N.W. 839,220 Iowa 1181
• Parties: PATTEE v. FULLERTON LUMBER CO. et al.
• Court: Iowa Supreme Court

263 N.W. 839

220 Iowa 1181

PATTEE v. FULLERTON LUMBER CO. et al.

No. 43199.

Supreme Court of Iowa.

December 17, 1935

Appeal from District Court, Pocahontas County; James De Land, Judge.

Widow of deceased filed claim under Workmen's Compensation Act. Defense was that deceased was in a representative capacity to the employer; that the injury complained of did not arise out of and in the course of employment. The district court so held, and gave judgment for the defendant. Claimant appealed.

Affirmed.

Finding of industrial commissioner, which was supported by evidence that death of lumberyard manager caused by fall on office steps because of dizziness while leaving office to care for nosebleed to which he was frequently subject was not compensable as " arising out of and in course of the employment," held conclusive on appeal. Code 1931, §§ 1363, 1452 (I.C.A. §§ 85.3, 86.29).

A. J Shaw and W. F. Shaw, both of Pocahontas, for appellant.

W. C Hoffmann and Stipp, Perry, Bannister & Starzinger, all of Des Moines, for appellees.

PARSONS, Justice.

This case makes the necessity of construing certain provisions of the Workmen's Compensation Act found in chapter 70 of the 1931 Code (section 1361 et seq.), and grows out of the death of W. D. Pattee, claimed to have been an employee of the Fullerton Lumber Company.

The widow of deceased filed a claim in the office of the Iowa Industrial Commissioner setting out in substance that her husband, W. D. Pattee, was employed by the lumber company at Rolfe, Iowa, and on the 5th day of March, 1934, received an injury arising out of and in the course of his employment, and resulting in his death March 13, 1934. It was set out that she was entirely dependent upon the deceased for her support, and asked compensation for the death and for expenses connected with his last illness, in accordance with chapter 70 of the Code of 1931.

The answer of the employer was as follows:

" 1. They deny each and every allegation contained in said application except that the said W. D. Pattee died on the 13th day of March, 1934.

2. They specifically deny that the said W. D. Pattee sustained an injury arising out of and in the course of his employment by the Fullerton Lumber Company.

3. They specifically deny that the said W. D. Pattee was a workman or employee of the Fullerton Lumber Company at the time of the sustaining of his injury on or about the 5th day of March, 1934, and aver that at the said time the said W. D. Pattee was holding an official position or standing in a representative capacity of the employer.

Wherefore the defendants pray that compensation be denied."

A hearing was had before Deputy Commissioner Ralph Youn, arbitration being waived, and who, on June 30, 1934, entered the following decision:

" First: That head abrasions suffered by W. D. Pattee on the premises of the defendant lumber company, March 5, 1934, resulted fatally March 15, 1934, did not arise out of his employment by the defendant lumber company within the meaning of the compensation statute.

Second: That although employed by the defendant lumber company, W. D. Pattee's relationship with the company and with the public was such that he stood ‘ in a representative capacity of the employer’ and accordingly was not an employee within the meaning of the compensation statute.

Wherefore by reason of the findings set out in either and both of the preceding paragraphs, compensation recovery to the widow, claimant herein, must be and is hereby denied. And the costs of the hearing are taxed to the claimant."

A petition for review by the Industrial Commissioner was presented and a hearing had on that, the Industrial Commissioner saying in his decision:

" In view of this entire record it is necessary to hold:

1. Injury to the person of W. D. Pattee, March 5, 1934, did not arise out of employment by this defendant.

2. In his working relation with the Fullerton Lumber Company the decedent was standing in a representative capacity of the employer.

In all its ruling and finding the arbitration decision in denial of award is affirmed."

From this decision of the Industrial Commissioner an appeal was taken to the district court of Pocahontas county, and after a hearing it was ordered by that court that the findings and orders of the Industrial Commissioner shown by the record of this case and the denial of award as found and entered of record by said commissioner be affirmed. Judgment was rendered against the appellant, Agnes Pattee, for the costs in this case, to all of which the appellant excepted. Appeal was then taken to this court.

The first question that arises in this case is: Was W. D. Pattee an employee within the meaning of the statute? Section 1421, Code 1931, provides: " In this and chapters 71 and 72, unless the context otherwise requires, the following definitions of terms shall prevail." Subsection 3 of this section provides: " The following persons shall not be deemed ‘ workmen’ or ‘ employees." ’ Then follows (d), providing that a person holding an official position, or standing in a representative capacity of the employer, or an official elected by the state, county, school district, municipal corporation, city under special charter, or the commission form of government, shall not be deemed an " employee."

It is urged by the appellant that her husband did not come within the exception set out in section 1421, while the appellee urges to the contrary. The decedent was not holding an official position when injured, so the only question is: Was the deceased standing in a representative capacity of the employer? The commission in its decision, which is printed in full in the abstract, speaking of the record, said: " As a witness John Evans qualifies as superintendent, having general supervision of company affairs. Asked as to the nature of Pattee's duties he says: ‘ He run the yard.’ ‘ He did everything that had to do with running a lumber yard.’ ‘ He was to perform all duties incident to running a lumber yard.’ ‘ He stood for the employer at that place.’ He says Pattee exercised discretion as to extension of credit and signed checks. Of course the decedent had superiors in authority. He was visited every week or so by an auditor or some higher-up. But in his functioning at Rolfe he spoke for the company-he surely was standing in a representative capacity of the employer."

The son of the deceased and claimant testified: " Father had general charge of the business there for the Fullerton Lumber Company. He rather managed and supervised the business."

Murrow testified that he hired Mr. Pattee for the company in 1923; that the business had been purchased from the Shull line, and the deceased had previously worked for Shull. Mr. Pattee's duties were to do anything that came up in the way of operating a retail yard. The Fullerton Lumber Company had supervision over these yards. The supervisor of the yard usually fixed prices, and the witness was the supervisor at that time. The following question was asked him on cross-examination:

" Q. And in the absence of someone else, he was the lumber yard at Rolfe, he would be the Lumber Company at Rolfe? A. He would be the same any day, whether the superintendent was there or not, his duties would be the same. He had been there since we hired him and before that."

Mr. Evans, the auditor of the company, testified that Pattee was known as manager of the business at Rolfe, and performed the duties of the same, and he stood pretty much for the company at that place; he signed checks. He didn't have to write to the company if a neighbor of his wanted to buy coal. He didn't have to write to ascertain one's credit; he used his own discretion. At the time he was injured he had a helper.

It appears to us that there was sufficient evidence...