Rubendall v. Brogan Const. Co.

• Decision Date: 06 February 1962
• Docket Number: No. 50452,50452
• Parties: Elvira RUBENDALL, Appellee, v. BROGAN CONSTRUCTION COMPANY, Employer, and Hartford Fire Insurance Company Group, Insurance Carrier, Appellants.
• Court: Iowa Supreme Court

Page 265

113 N.W.2d 265

253 Iowa 652

Elvira RUBENDALL, Appellee, v. BROGAN CONSTRUCTION COMPANY, Employer, and Hartford Fire Insurance Company Group, Insurance Carrier, Appellants.

No. 50452.

Supreme Court of Iowa.

Feb. 6, 1962.

Davis, Huebner, Johnson, Burt & Fulton, Des Moines, for appellants.

Finley & Teas, Mason City, for appellee.

HAYS, Justice.

Claimant, appellee, as a surviving spouse, seeks death benefits as provided by Chapter 85, Code of Iowa, I.C.A. Upon a hearing the deputy commissioner found that injuries from which decedent died did not 'arise out of and in the course of his employment' and denied relief. The commissioner on review sustained this finding. The district Court on appeal, Hon. William P. Butler, presiding, reversed and remanded with directions 'for further proceedings in harmony with this decree'. The commissioner, upon remand, again evaluated the record, no new testimony being offered, and found the injury 'did not arise out of and in the course of his employment' and dismissed the proceedings. On appeal to the district Court, Hon. L. E. Plummer, presiding, the cause was remanded for an award in conformity with Judge Butler's decree. The cause is here before this Court under Rule 332, R.C.P., 58 I.C.A.

Judge Butler filed his decree September 1, 1960 from which no appeal was taken. On June 5, 1961, Judge Plummer filed his decree from which this appeal was taken. Two questions predominate here. (1) The status of the Butler decree; (2) The correctness of the Plummer decree.

Both trial Courts and litigants are agreed upon the basic legal principles governing cases under Chapter 85. It is by our decisions and by statute the established rule that the findings of fact of the commissioner have the force of a jury verdict and may not be disturbed if supported by any substantial evidence but may be reviewed by the Court on appeal to determine whether the commissioner has properly related the facts found to the applicable law. Sections 86.29 and 86.30, Code of Iowa, I.C.A.; Brewer v. Central Construction Co., 241 Iowa 799, 43 N.W.2d 131; Barton v. Nevada Poultry Co., 252 Iowa ----, 110 N.W.2d 660.

A brief statement of the factual situation is as follows: Forest Rebendall was an employee of the Brogan Construction Company and at the time of his death was working upon two bridge construction projects in Cerro Gordo County. He lived with his family in a trailer which was moved from job site to job site. The two jobs were referred to as the West bridge and East bridge. His trailer was parked about a block from the West bridge. The East bridge was some six miles to the east. A fellow workman and the foreman, Evan Goering, lived in a trailer parked near that of decedent. When working on the East bridge it was customary for them to alternate in the use of their cars to go back and forth to work. On June 4, 1957, the two used the Goering car to go to the East bridge where they worked that day. Goering was directed by a Mr. Barnhart, the superintendent of the two jobs, to work on the West bridge the next day and told him to take certain tools from the East to the West bridge. There is a dispute in the record whether decedent assisted in the loading of these tools. There is also a dispute in the record as to where decedent was to work the next day. On their return trip home to the West bridge, they went out of their direct route into the town of Plymouth where decedent purchased some cigarettes. After they had reached their usually travelled route, on leaving Plymouth, they were involved in a car accident in which decedent sustained injuries from which he died.

I. It is appellee's contention that decedent sustained personal injuries arising out of and in the course of his employment, as defined in Section 85.61(6), Code of Iowa, I.C.A. This section provides: 'The words 'personal injury arising out of and in the course of the employment' shall include injuries to employees whose services are being performed on, in, or about the premises which are occupied, used, or controlled by the employer, and also injuries to those who are engaged elsewhere in places where their employer's business requires their presence and subjects them to damgers incident to the business'. (Italics ours.) It is under the italicized portion that this claim is based. It is generally referred to as the 'dual purpose' rule.

The record shows without dispute that at the time of the accident, decedent was en route home from his work on the East bridge. It is conceded that, if nothing more appeared in the record, the 'going and coming rule' would be applicable and there could be no recovery. See, Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 73 N.W.2d 27, and cited authorities.

The so-called 'dual purpose' rule is often accepted as an exception to the 'going and coming rule' and has been stated to be as follows: 'If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own * * *. If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose though the business errand was undone, the travel is then personal, and personal the risk.' Pohler v. T. W. Snow Construction Co., 239 Iowa 1018, 33 N.W.2d 416. See, also, Kyle v. Greene High School, 208 Iowa 1037, 226 N.W. 71; Pribyl v. Standard Electric Co., 246 Iowa 333, 67 N.W.2d 438; Crowe v. De Soto Consolidated School Dist., 246 Iowa 402, 68 N.W.2d 63; Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555; Lamb v. Standard Oil Co., 250 Iowa 911, 96 N.W.2d 730.

As before stated,...