Schmidt v. Pittsburgh Plate Glass Co.

• Decision Date: 14 October 1952
• Docket Number: No. 48093,48093
• Citation: 55 N.W.2d 227,243 Iowa 1307
• Parties: SCHMIDT v. PITTSBURGH PLATE GLASS CO.
• Court: Iowa Supreme Court

Page 227

55 N.W.2d 227

243 Iowa 1307

SCHMIDT v. PITTSBURGH PLATE GLASS CO.

No. 48093.

Supreme Court of Iowa.

Oct. 14, 1952.

Corcoran & Kennedy (of Sibley, and Bailey, Voorhees, Woods & Fuller), Sioux Falls, S. Dak., for appellant.

G. C. Murray (of Sheldon, and Stordahl, May & Boe), Sioux Falls, S. Dak., for appellee.

SMITH, Justice.

Plaintiff's deceased husband was employed by defendant as a salesman out of its branch office at Sioux Falls, South Dakota. His territory embraced six northwest Iowa counties including Osceola County. He was injured June 13, 1950, in said county, at about 11:30 p. m. while on the road between Sibley and Sheldon. He died some days later at Sibley.

On February 1, 1951, compensation was awarded plaintiff by a deputy Iowa industrial commissioner on the transcript of an earlier hearing before another deputy who had died before deciding the matter. On review the award was affirmed by the commissioner, and his decision was later upheld by the district court. This appeal by the defendant employer followed.

I. Defendant urges that the Iowa Industrial Commissioner acted in excess of his power in assuming jurisdiction of a claim arising out of a South Dakota contract between South Dakota parties and in refusing to apply the South Dakota Workmen's Compensation Law, S.D.C. 64.0101 et seq.

The petition for arbitration herein was filed September 28, 1950. Defendant employer answered October 17, alleging, among other defenses, that the contract was a South Dakota contract, that the Workmen's Compensation Law of that state governed and formed a part of the contract and that an action was pending in South Dakota between the same parties, arising out of the same injury and based on the same facts as were involved in the Iowa proceeding.

It was shown (subject to plaintiff's objection as to lack of competency, relevance and materiality) that defendant had filed a petition (dated August 17, 1950) before the Industrial Commissioner of South Dakota, asking a hearing and a determination that Mr. Schmidt's injuries and death did not arise out of or in the course of his employment. A printed copy of the South Dakota workmen's compensation law was also received subject to the same objection. It was conceded by defendant that the injury to the employee occurred in Iowa and that there had been no determination of the proceeding in South Dakota.

Plaintiff offered evidence, also received subject to objection (this time by defendant), that the South Dakota circuit court on December 1, 1950, had granted Mrs. Schmidt an interlocutory order enjoining defendant employer and the South Dakota Commissioner from proceeding in that compensation hearing 'until further order' of that court.

II. Defendant's brief and argument at this point is predicated upon the full faith and credit clause, Article IV, Section 1, U.S.Constitution, and upon the 1948 act of Congress, 28 U.S.C.A. § 1738 which provides that acts of state legislatures as well as state judicial proceedings 'shall have the same full faith and credit in every court * * * as they have by law or usage in the courts of' the state 'from which they are taken.'

(No contention is argued under the general theory of 'another action pending').

Defendant's argument is ingenious but we deem it unsound. The decision in Pacific Employers Insurance Co. v. Industrial Accident Commission, 306 U.S. 493, 500-502, 59 S.Ct. 629, 632, 633, 83 L.Ed. 940, seems conclusive. It involves a Massachusetts contract of employment and an injury to the employee thereunder in California. It was argued the Massachusetts Act fixed the employee's right to compensation. The decision held the full faith and credit clause did not apply saying: 'the very nature of the federal union of states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.'

The opinion quotes from Alaska Packers Association v. Industrial Accident Comm., 294 U.S. 532, 547, 55 S.Ct. 518, 523, 79 L.Ed. 1044: 'A rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be [enforced] in its own.'

The opinion in the Alaska Packers Ass'n. case also says: 'It has often been recognized by this Court that there are some limitations upon the extent to which a state will be required by the full faith and credit clause to enforce even the judgment of another state, in contravention of its own statutes or policy', citing various cases.

Defendant cites a later decision, Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 982, 95 L.Ed. 1212, not a compensation case but one which involved refusal of the Wisconsin courts to take jurisdiction of an action for a death occurring in Illinois. The cause of action was one created by the Illinois wrongful death act not recognized by the Wisconsin statute which created a right of action only for deaths caused in that state. The U. S. Supreme Court (four justices dissenting) held Wisconsin's policy 'must give way', arguing 'That state has no real feeling of antagonism against wrongful death suits in general' but on the contrary provided a forum 'for cases of this nature, the exclusionary rule extending only so far as to bar actions for death not caused locally.'

Defendant clings to a footnote to this case suggesting that a revision of the Judicial Code, since the earlier one, may have broadened its effect as to statutes as distinguished from judgments of sister states. We do not think the cited revision has met the decision in Pacific Employers Ins. Co. v. Industrial Accident Comm., supra.

Our own decisions can afford defendant no comfort on this question. The somewhat recent case, Haverly v. Union Construction Co., 236 Iowa 278, 18 N.W.2d 629, while establishing the right to relief under the law of the state in which the contract of employment was made does not purport to preclude such relief under the law of the state where the employment contract was to be, and was being, performed and in which the injury occurred. The opinion cites the Restatement of the Law of Conflict of Laws, § 398, page 486, in support of the decision. But § 399 of that same authority is the one applicable here. It states: '* * * a workman may recover in a state in which he sustains harm under the Workmen's Compensation Act of that state although the contract of employment was made in another state, unless the Act provides in specific words or is so interpreted as to apply only when the contract of employment is made within the State.'

What we have said as to the opinion in the Haverly case is equally pertinent as to decisions in Pierce v. Bekins Van & Storage Co., 185 Iowa 1346, 172 N.W. 191, and Cullamore v. Groneweg & Schoentgen Co., 219 Iowa 200, 257 N.W. 561, cited by defendant. They do not deny the right to seek compensation in the state where the contract was being performed.

We find no Iowa case that does so hold. In 71 C.J. 303, Workmen's Compensation Act, § 45, it is said the test has been held to be 'the place where the employment is located, or is to be performed' (emphasis is ours) and that 'the place where the contract * * * is entered into has been held not decisive and not necessarily controlling.'

Similarly in 58 Am.Jur., Workmen's Compensation, § 69, it is said: 'But the full faith and credit clause * * * does not operate to make the compensation act of the state where the contract * * * was made, and in which the parties reside, * * * a defense to a proceeding brought under the compensation act of the state in which the injury occurred, where the statute does not preclude recovery under the law of another state,' citing State of Ohio v. Chattanooga Boiler & Tank Co., 289 U.S. 439, 53 S.Ct. 663, 77 L.Ed. 1307.

III. Defendant also contends the award was based on incompetent evidence of the employee's declarations the evening of and before the injury.

His duty was to sell glass and paint. He was defendant company's only salesman representative in the Osceola County territory. The branch manager on cross-examination admitted: 'The duty of the salesman is to call on business representatives in the respective counties and try to help increase the business in behalf of the company. The salesmen were what might be termed good will emissaries in behalf of the company * * *. If there was anything that came to Mr. Schmidt's attention indicating there was a big contract in the making * * * he would immediately call or contact the Sioux Falls office. If there...