Slycord v. Horn

• Decision Date: 05 April 1917
• Docket Number: No. 30931.,30931.
• Citation: 179 Iowa 936,162 N.W. 249
• Parties: SLYCORD v. HORN.
• Court: Iowa Supreme Court

179 Iowa 936

162 N.W. 249

SLYCORD

v.HORN.

No. 30931.

Supreme Court of Iowa.

April 5, 1917.

Appeal from Superior Court of Grinnell; P. G. Norris, Judge.

Appeal by plaintiff from an order of the lower court in sustaining defendant's motion to strike certain parts of plaintiff's amended petition and in sustaining defendant's motion for a more specific statement. Affirmed.Ross R. Mowry and M. R. Hammer, Jr., both of Newton, and Harold L. Beyer, of Grinnell, for appellant.

J. H. Patton, of Grinnell, for appellee.

PRESTON, J.

There was a motion to strike parts of the original petition and for more specific statement, which was sustained in part and overruled in part, and thereafter an amendment to petition was filed, and defendant filed a demurrer to the petition as amended, setting up 20 grounds or more, and the demurrer was sustained. Thereafter a substituted petition was filed, and it is conceded by both sides that the only questions presented on this appeal are in regard to the rulings of the trial court on defendant's motion to strike certain parts of the substituted petition and on the motion for more specific statement.

The substance of the allegations in the substituted petition is that about November 13, 1914, defendant was the owner of a certain corn shredder and other appurtenances thereto belonging and was engaged as an independent contractor in the business of operating said corn shredding machine for profit; that while the defendant was engaged in operating said corn shredder for one Swaney on said Swaney's farm in Poweshiek county, Iowa, the plaintiff, while in the employ of the defendant and engaged in operating said shredder, was injured by his hand being caught therein, and the thumb of his right hand was cut and his hand otherwise injured; that the plaintiff at the time he received the injury was operating said shredder under the immediate direction of the defendant, and in the presence of the defendant; that as a result of said injury plaintiff's right hand was seriously and permanently injured, and he has suffered intense pain and anguish, both physical and mental, and has been and will be partially incapacitated for work; that he has incurred expense for medicine, nursing, and for physicians; that at the time of the injury he was an able-bodied man engaged in the occupation of an engineer and general laborer, receiving on an average of $18 per week as compensation for his labor; that said injury was not intentional on the part of plaintiff or the result of intoxication on his part; the damages claimed are particularly set out. It is then alleged: That the defendant at the time of the accident to the plaintiff, resulting in the injury of the plaintiff, had not insured his liability under chapter 147 of the Laws of the Thirty-Fifth General Assembly of the state of Iowa, in any corporation, association, or organization approved by the state department to such insurance department satisfactory to the insurance department and Iowa industrial commissioner of his solvency and financial ability to pay the compensation and benefits as by such act provided, and to make such payments to the parties entitled thereto: Nor had the defendant deposited with such insurance department and the Iowa industrial commissioner security satisfactory to such insurance department and the Iowa industrial commissioner as would secure the payment of such compensation. He asks damages in the sum of $10,000.

Defendant moved to strike that part of the petition in which it was alleged that defendant was an independent contractor, and for profit, but this was overruled. The defendant also moved to strike that part of the petition alleging that defendant had not insured his liability under chapter 147 of the Thirty-Fifth General Assembly, and that he had not deposited security with the insurance department for the reason that the same is immaterial and redundant matter and surplusage, it appearing on the face of the substituted petition that plaintiff, at the time the alleged injuries were sustained, was a laborer engaged in an agricultural pursuit, and within the exception of section 1, c. 147, 35 Gen. Assem. (section 2477m, Code Supp. 1913). This ground of the motion was sustained.

As a part of the motion, appellee moved for a more specific statement upon the following grounds, among others: (3) Let him be required to state whether or not negligence in the premises by the defendant was the proximate cause of the alleged injury to plaintiff, and if he alleges that it was, let him be required to state in what respect or particular and in what manner the defendant was negligent in the premises. (4) Let him be required to state whether or not the plaintiff was free from contributory negligence. These two grounds of the motion were sustained. It will be observed that it is not alleged in the petition that defendant was guilty of negligence, nor that plaintiff was free from contributory negligence. It is not claimed by appellant that the allegations of his petition would entitle him to recover as for negligence at common law. But he does claim that he has brought himself within the Workmen's Compensation Act, while defendant's contention is that plaintiff is within the exception contained in the act, which provides:

“* * * But this act shall not apply to any household or domestic servant, farm or other laborer engaged in agricultural pursuits,” etc.

It does not appear from the record, but seems to be conceded in argument that neither the employer nor the employé had given notice of an election to reject the terms of the Compensation Act; that neither the employer nor the employé had given notice of an election to accept or reject the terms of the act; that appellee, as an employer of labor, did not give notice in writing to his employés of an election not to provide, secure, and pay compensation under said act to employés for injuries sustained arising out of and in course of the employment by posting said notice or by filing same with the Industrial Commissioner.

Incidentally, the issue is raised, and there is some argument upon the point, as to whether or not appellee rejected the Workmen's Compensation Act by failing to insure his liability thereunder or by failing to deposit security, and thus brought within the provisions of said Workmen's Compensation Act. Appellant contends that appellee, not having insured his liability as required by the provisions of the Employers' Liability and Workmen's Compensation Act as contained in section 2477m41 of the 1913 Supplement of the Code, was liable in the instant case for the injury of appellant under part 1 of the act to the same extent as though he had rejected the provisions of the act. And the inquiry, as appellee puts it, is whether by such failure or omission he rejected the act, and whether he is by reason thereof deprived of the common-law defenses of assumption of risk, contributory negligence, etc. It is said in argument that if this question has not already been raised and decided, the opinion of this court upon this phase of the matter will doubtless be helpful to the profession as a whole in dealing with the Workmen's Compensation Act in the future. But, as we shall see in a moment, we think the question is not in the case, and it will be time enough to decide the point when it is properly raised and we have argument upon the point. It is doubtful whether the question is raised by the pleadings, but, if it is, the argument is limited to two questions, and they are whether the rights of the parties are affected by the claim that defendant was an independent contractor, and whether or not plaintiff was engaged in agricultural pursuits and thus comes within the exception to the statute. If the fact that defendant, as between himself and Swaney, was an independent contractor is not material, then the question presented is narrowed still further to the one question as to whether or not plaintiff was engaged in agricultural pursuits.

One of the assignments of error is that the lower court erred in striking from appellant's substituted petition the paragraph averring that the appellee had not insured his liability under the Employers' Liability and Workmen's Compensation Act, for the reason that the appellee, in operating the corn shredder as an independent contractor for profit, was not engaged in agricultural pursuits. In support of this they cite sections 2477m and 2477m41, 1913 Supplement to the Code; Hunter v. Coal Co., 154 N. W. 1037. They put it another way, and they concede in argument that:

“If the appellee, in operating said corn shredder, was engaged in...