Sheahan v. Plagge

• Citation: 255 Iowa 182,121 N.W.2d 120
• Decision Date: 09 April 1963
• Docket Number: No. 50633,50633
• Parties: John P. SHEAHAN, Administrator of the Estate of Herman Kleeman, Deceased, Appellee, v. Dallas PLAGGE, Appellant.
• Court: United States State Supreme Court of Iowa

Page 120

121 N.W.2d 120

255 Iowa 182

John P. SHEAHAN, Administrator of the Estate of Herman Kleeman, Deceased, Appellee, v. Dallas PLAGGE, Appellant.

No. 50633.

Supreme Court of Iowa.

April 9, 1963.

Rehearing Denied June 11, 1963.

Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellant.

Hobson & Cady, Hampton, and Carl Foster, Sheffield, for appellee.

THORNTON, Justice.

I. Defendant states the question on appeal thus: 'Whether or not Section 85.1 (3), Code of Iowa (1958) [I.C.A.] bars the right of the plaintiff to recover damages.'

This is a common law action between the legal representative of an employee and his employer for damages for a fatal injury received while working under the direction of the employer. If the decedent is not specifically excluded from workmen's compensation plaintiff can not recover. Groves v. Donohue, Iowa, 118 N.W.2d 65, 69.

The applicable code section is:

'85.1 To whom not applicable. This chapter shall not apply to: * * *

'3. Persons engaged in agriculture, insofar as injuries shall be incurred by employees while engaged in agricultural pursuits or any operations immediately connected therewith, whether on or off the premises of the employer, * * *.'

Subsection 3 further provides employers solely engaged in agriculture and those engaged in agriculture and also engaged in any other trade or business may elect to come under the act.

For a person to be excluded from compensation under the above section two things must be present, 1, he must be engaged in agriculture, and 2, he must be injured while engaged in an agricultural pursuit or any operation immediately connected therewith. Crouse v. Lloyd's Turkey Ranch, 251 Iowa 156, 100 N.W.2d 115; and 32 Iowa Law Review 1, 7. See also Criger v. Mustaba Investment Company, 224 Iowa 1111, 276 N.W. 788; Trullinger v. Fremont County, 223 Iowa 677, 273 N.W. 124; and Taverner v. Anderson, 220 Iowa 151, 261 N.W. 610.

Defendant assigns four errors for reversal. He combines them all for argument as they relate to the one proposition as above stated. In the course of his argument he restates the question for decision: 'The real issue here is whether his right to compensation depends on his general employment or what he was doing on one isolated occasion.' 'Is an employee barred from recovering compensation because on one isolated occasion he is engaged in an 'agricultural pursuit' at the time he is injured.'

In his statement of the question on review, we believe defendant has overlooked that both employees and employers may have more than one occupation.

II. The evidence is clear, defendant employer had two occupations, sand and gravel, and farming; decedent was an employee of defendant in one or both of the occupations of defendant and decedent lost his life in an agricultural pursuit. Defendant operated two separate and distinct enterprises. He operated a sand and gravel business, he also farmed 164 acres. He testified he has farmed since 1955, and, 'This [1961] is my third year in the sand and gravel business.' Defendant has two gravel pits located adjacent to a 54-acre cornfield. The corn ground is light soil and defendant irrigates it to get better production.

Defendant testified decedent went to work for him at the gravel pit in April, 1959. Decedent was employed to work in the gravel pit. Defendant maintained two separate checking accounts, one for the sand and gravel business, one for farming. Decedent was paid from the sand and gravel account. Decedent's duties were to load and weigh gravel, and answer the phone at the gravel pit. Defendant further testified:

'There was enough work at the pit to keep Mr. Kleeman [decedent] busy all day. * * * Mr. Kleeman was hired to work at the pit. That is where he did work. He spent all of this time at the pit.'

Concerning the work at the time decedent was killed, defendant testified he had a farm tractor, one not used at the pit, for moving the spraying machine. He picked up another man, Keith Rader, to help with the irrigating. They were going to move the machine themselves.

'However, Herman [decedent] stood at the pit and said 'Do you want me to help?' and I said 'Yes, if you want to drive the tractor you can go ahead' and we all went out there. If Mr. Kleeman hadn't gone along, he would have left the pit and gone home since it was 5 o'clock.'

At the end of the field defendant took over the operation of the tractor and in turning one of the booms on the machine came in contact with the electric line electrocuting decedent.

Concerning the operation and decedent's work, defendant testified:

'The moving of the machine was under my direction. I was the boss. Mr. Kleeman had never helped me move the boom that I know of but he may have helped me pick up a few pipes now and then but it was rare if he did. I don't remember if he ever did. He may have or may not. He had never helped move the trailer before. He had never guided the back end of the trailer before.'

In its findings and judgment the trial court stated:

'Whether the defendant was at the time engaged in agricultural pursuit or was engaged as the operator of the gravel and sand pit is one of the questions to be answered by this court.

'VII. It is a well-recognized rule of law that a person may be actually engaged in more than one pursuit at the same time. The real test is as to which one was he actually performing at the very time in question.

'The court has no doubt but what the defendant and his employee had ceased the gravel pit operation when he entered the field where the irrigation machine was located. There was no relation as to the operation of the gravel pit involved when the tractor was hitched to the irrigating machine. The field was owned and operated by the defendant as farm land and the defendant was then purely engaged in agricultural pursuit.

'The fact that the decedent was not being actually paid for extra work or activity did not dissolve the relationship of the parties as employer and employee. The decedent was actually responding to the directions of the defendant as his employer at the time in agricultural pursuit and how he was to be paid, if at all, is inconsequential. * * *

'The employer in this case in each instance was the same whether at the gravel pit or on the farm.'

And the court entered judgment for the plaintiff.

Defendant argues these findings are not supported by the evidence. Also that the trial court was applying the moment of injury rule. We believe it is apparent the testimony of defendant supports the findings. The court found both decedent and defendant had ceased working at the gravel pit and there was no relation between that work and the work with the irrigating machine. The question of payment for the irrigating work is mentioned, this would be entirely unnecessary if this work was an extension of the gravel pit work. The defendant did not direct the decedent to help with the irrigating as a part of the gravel pit work.

The court here has actually found that decedent and defendant entered into a new hiring agreement at the end of the working day at the gravel pit when decedent asked defendant if he wanted him to help and defendant said, 'Yes.' That agreements for work and labor may be informal and depend on the intention of the parties, see Erickson v. Erickson, 250 Iowa 491, 94 N.W.2d 728; Hitchcock v. Artic Creamery Company, 170 Iowa 352, 150 N.W. 727; and Ganzhorn v. Reep. 234 Iowa 495, 12 N.W.2d 154; or that such may be more elaborate, see Pribyl v. Standard Electric Company, 246 Iowa 333, 67 N.W.2d 438.

The findings of the trial court are liberally and broadly construed to uphold the judgment, effect is given to what is implied as well as stated. Rank v. Kuhn, 236 Iowa 854, 856, 20 N.W.2d 75; and In re Estate of Evans, 228 Iowa 908, 918, 291...