Petersen v. Corno Mills Co.

• Decision Date: 20 June 1933
• Docket Number: No. 41951.,41951.
• Citation: 249 N.W. 408,216 Iowa 894
• Parties: PETERSEN v. CORNO MILLS CO.
• Court: Iowa Supreme Court

216 Iowa 894

249 N.W. 408

PETERSEN

v.CORNO MILLS CO.

No. 41951.

Supreme Court of Iowa.

June 20, 1933.

Appeal from District Court, Linn County; Atherton B. Clark, Judge.

Appeal from judgment and decree of the Linn county district court affirming order and decision of the Iowa industrial commissioner denying an award under the Workmen's Compensation Act (Code 1931, § 1361 et seq.).

Reversed and remanded.

B. D. Silliman, of Cedar Rapids, for appellant.

Carl F. Jordan, of Cedar Rapids, for appellee.

MITCHELL, Justice.

Robert T. Petersen, the claimant and appellant, was employed in September, 1930, by the Corno Mills Company, a corporation which owned and operated a plant at Cedar Rapids, Iowa, known as the Three-Minute Cereal Company. Petersen was employed as an office and messenger boy. Customarily he received the company's mail at the post office at 6:30 in the morning, had it sorted by 8 o'clock when the office opened, and at the close of the day's business in the evening he deposited the mail at the post office. During the day he made trips to the bank, to the freight offices, down stairs, paid bills in the business district, and ran errands as he was directed to do by his employer. In addition to these routine duties, the claimant, during his entire period of employment, from November, 1929, until September, 1930, was frequently ordered to perform services and to run errands for Mr. John C. Reid, who was the general manager of the Cedar Rapids branch of the Corno Mills Company. During this period of time he made many trips connected with Mr. Reid's personal business, and it appears from the record without contradiction, both from the testimony of Mr. Adrian Vermeersch, office manager of the employer, and of Mr. John C. Reid, the general manager of the Cedar Rapids branch, that it was Mr. Petersen's duty to perform such errands and services as were requested of him by Mr. Reid, regardless of whether it was a personal matter or connected with the company's business. Whenever Mr. Petersen was required to leave the plant, according to the rules and regulations of the employer, Petersen was instructed to present a written slip to Mr. Vermeersch, the office manager. This slip described the purpose of the trip and stated the destination and what time he expected to be back.

On the 19th of September, 1930, Petersen reported to the office for work as usual. About 9 o'clock in the morning he was called into Mr. Reid's private office, and Mr. Reid directed him to go to his house and to perform any work and do anything which Mrs. Reid might want him to do. It seems that on the following day Mr. Reid's daughter was going to be married, and there were various things to be done around the house and yard to prepare for the event. Petersen immediately reported to the office manager, Mr. Vermeersch, and filed with him a slip of paper showing where he was going and what he was going to do, and received from Mr. Vermeersch his O. K. on the slip. This was in compliance with the rules and regulations of the company and in the ordinary course of business. When he arrived at the Reid home, he moved furniture around and went down town on a couple of errands, using Mr. Reid's car. He was there from 9 a. m. until 5 p. m. On the following day, September 20, 1930, Mr. Reid called up the office and said he wanted Fred Schindler and Petersen to come out to the house. In compliance with the regular procedure at the office, Petersen again presented a written slip to the office manager, and received his O. K., and went out to the Reid's home, in compliance with the direction of his employer. Mr. Reid himself directed Schindler to take down a lot of lights used at a lawn party and Petersen to take up the canvas they had stretched out on the lawn to dance on. Mr. Reid was there when Petersen started to do his work and told him what to do. Reid suggested he use a hammer to pull up the pegs. They were about six inches long and driven into the ground, and the hammer did not seem to work right, so Petersen got a screw driver to pry over the hammer. Petersen had pulled up about half of the stakes when, all of a sudden, a piece of a stake split off and hit him in the eye. The stakes were made out of prepared boards and each one had a notch in it. The part above the notch was the part that struck Petersen. He was hit in the left eye. A doctor was immediately called by Mrs. Reid and Petersen was taken to the hospital, where his injury received treatment. Mr. Vermeersch, the office manager of the Three-Minute Cereal Company, recognizing that Petersen was injured while working for the company, filed a report of the injury with the insurance carrier. Petersen was paid for his time on the day of the injury by the Corno Mills Company. He received no pay from Mr. Reid personally. The record shows that not only this errand boy Petersen, but all other errand boys since 1904, had been required, while working for the Corno Mills Company, to perform services for Mr. Reid's convenience, and had at all times performed personal services for Mr. Reid. Mr. Reid himself testified that it was Petersen's duty to perform the services requested, and that, had Petersen refused, he would have been discharged. There is no dispute in the evidence on the extent of the injury. Dr. Bailey testified that the use of the left eye is permanently destroyed. The nature of the defense was a general denial that the accident arose out of and in the course of the employment, and that the claimant at the time of his injury had departed from the course of his employment and was engaged in an independent enterprise.

The case was first presented to an arbitration committee, which held against the claimant; from which ruling the claimant took an appeal to the industrial commissioner, who affirmed the decision of the arbitration committee, holding that the claimant was not entitled to compensation; and from that ruling the claimant appealed to the district court of Linn county, which sustained the finding and order of the industrial commissioner; and from the ruling and judgment of the district court the claimant has appealed to this court.

[1] At the very outset we are met by the contention of the appellee that the findings of fact of the industrial commissioner are conclusive.

This court, in the case of Tunnicliff v. Bettendorf reported in 204 Iowa, 168, on page 170, 214 N. W. 516, 517, says: “There is no merit in appellant's contention that the findings of fact of the industrial commissioner are conclusive. As we have said, there was no conflict in the evidence; and if the facts found by the commissioner do not support the order made by him, or if there is not sufficient competent evidence to support the finding, the order based thereon may be reviewed and set aside by the court. Section 1453 [Code of 1924]; Rish v. Iowa Portland Cement Co., 186 Iowa, 443, 170 N. W. 532;Bidwell Coal Co. v. Davidson, 187 Iowa, 809, 174 N. W. 592, 8 A. L. R. 1058;Norton v. Day Coal Co., 192 Iowa, 160, 180 N. W. 905;Kent v. Kent, 202 Iowa, 1044, 208 N. W. 709;Johnson v. City of Albia, 203 Iowa, 1171, 212 N. W. 419. It is only where there is a conflict in the evidence that the findings of fact of the commissioner are conclusive. Pace v. Appanoose County, 184 Iowa, 498, 168 N. W. 916;Flint v. City of Eldon, 191 Iowa, 845, 183 N. W. 344;Sparks v. Consolidated Ind. Coal Co., 195 Iowa, 334, 190 N. W. 593;Wittmer v. Dexter Mfg. Co. , 214 N. W. 700.”

In the case at bar there is absolutely no dispute as to the facts, not even to the extent of the injury. The employer speaking through its general manager, Mr. John C. Reid, and through its office manager, Mr. Vermeersch, admits and testifies positively that the injury arose out of the claimant's employment. Mr. Reid, the general manager, testified that it was a part of the job that Petersen held to run errands for him of a personal nature, and that this had been true of all office and errand boys that had been employed by the company since he had been vice president and general manager, or since the year 1904. Mr. Reid testified that, had Petersen refused to obey the orders given by him to go to the Reid home and do whatever he was directed to do there, he would have immediately discharged him. The nature of a man's employment is determined by the contract, and certainly no one should be in a better position to construe that contract than the employer and employee who are parties to it. The employer says, through its general manager, that, when Petersen was performing the duties which gave rise to his injury, he was within the scope of his employment. This case is to be determined upon the evidence as to what Petersen's duties were with this company, and not upon the evidence as to what the duties of office and messenger boys ordinarily might be. According to this record, it has been part of the duties of the office or errand boys connected with the appellee company during the past twenty-five years to render personal service to Mr. Reid, to run errands for him, and to do things for him personally. This was known to the company, because Mr. Reid so testified and he was the vice president and general manager in charge of the company's mills at Cedar Rapids. It was an arrangement which no doubt was of great benefit to the appellee company. It removed these personal matters from Mr. Reid's mind and from his time. It gave to Mr. Reid an opportunity to spend more time in his official capacity, as vice president and general manager of this appellee company. It no doubt was cheaper for the Three-Minute CerealCompany to pay an office boy to perform these tasks...