Storm v. Thompson

• Decision Date: 23 January 1919
• Docket Number: 32339
• Citation: 170 N.W. 403,185 Iowa 309
• Parties: G. W. STORM, Appellant, v. GEORGE O. THOMPSON, Appellee
• Court: Iowa Supreme Court

170 N.W. 403

185 Iowa 309

G. W. STORM, Appellant, v. GEORGE O. THOMPSON, Appellee

No. 32339

Supreme Court of Iowa, Des Moines

January 23, 1919

Appeal from Polk District Court.--THOS. J. GUTHRIE, Judge.

Affirmed.

John D Denison and Royal & Royal, for appellant.

Brockett Straus & Shaw and Frank T. Jensen, for appellee.

WEAVER J. LADD, C. J., GAYNOR, PRESTON, and STEVENS, JJ., concur.

OPINION

THE opinion states the case.--Affirmed.

WEAVER J.

The plaintiff, for a period of two years or more, had made a business of what he calls "tree work." Concerning it, he says his occupation was "anything to be done with trees, such as trimming, removing, and chopping them down. That is the way I make my living." The defendant was a contractor, engaged in grading a city street. The progress of this work appears to have required the removal of certain trees upon the land through which a way for the street was being cut. On March 17, 1917, the parties entered into a contract for the removal of the trees. The agreement was in writing, and, omitting the signatures. reads as follows:

"This contract, entered into by G. W. Storm, party of the first part, and G. O. Thompson, party of the second part, witnesseth:

"The party of the first part agrees to remove by grubbing, if necessary, sixty-two (62) trees, located on Sixth Avenue between Center and School Streets, for the sum of seventy-five (75) dollars and the wood that said trees will make.

"Party of the second part agrees to remove stumps from job and furnish teams to haul wood to No. 1060, Sixth Avenue."

Plaintiff proceeded with the work mentioned in the contract, and, while so engaged, and in the act of removing one of the trees, he was accidentally injured, in such manner as to cause the loss of two fingers of his left hand. On the theory that he was an employee engaged in the service of the defendant, he made claim for an allowance of damages under the Workmen's Compensation Act. This demand was resisted by the defendant, on the ground that plaintiff was not its employee, but a contractor, and as such, did not come within the protection of the statute. The majority of the arbitration committee to whom the matter was submitted found against the plaintiff, on the theory that he was not an employee, within the meaning of the Compensation Act, but a contractor.

On the hearing before the court, the contract was introduced in evidence, and the fact of plaintiff's injury was shown. In addition, plaintiff testified that he did the work alone, using his own saws, axes, ropes, and other tools, but procured or borrowed from defendant a bar, pick, and shovel, for temporary use on some parts of the job. As the defendant's steam shovel was also working in that vicinity, and it was necessary to have the trees nearest the front of the shovel removed, to avoid delaying its operation, it was understood between the parties that this work should have priority of attention, and on several occasions, the defendant gave directions to that effect. Plaintiff controlled his own hours and times of work, so long as he kept it ahead of the shovel. After the accident, defendant furnished a man to complete, or to assist plaintiff in completing, the removal of the trees.

There is no dispute as to the facts in the case. The trial court affirmed the arbitrators' finding, and plaintiff appeals.

The Workmen's Compensation Act, after defining the word "workman" as synonymous with "employee," and as meaning any person who has entered into the employment or works under contract of service for an employer, with certain specified exceptions, attaches to such definition the following proviso:

"Provided that one who sustains the relation of contractor with any person, firm, association, corporation * * * shall not be considered an employee thereof." Section 2477 m16, Code Supplement, 1913.

The question we have to consider in this case is whether the plaintiff's relation to the defendant, as shown by the evidence, is that of a workman, or employee, within the statutory definition of the term, so that he is entitled to an award in damages, or whether he is to be regarded as a contractor, and, therefore, not within the protection of the act.

Whether the distinction thus drawn between workman and contractor is in all respects, logical and just, is a consideration for the legislature, and not for the court, which must apply and give effect to the statute according to its plain and unequivocal terms. The only debatable question, therefore, is whether, upon the admitted facts, the arbitrators and the trial court erred in classing plaintiff as a contractor. The term is one of very frequent use in common speech, and its meaning has often been considered by the courts. As is not unusual in judicial definitions of even the most familiar words, it has been variously phrased and interpreted; but we think there has been developed no radical difference of opinion as to its substantial meaning or effect. In its broadest sense, every person who enters into a...