Taylor v. Horning

• Decision Date: 14 June 1949
• Docket Number: 47424.
• Parties: TAYLOR v. HORNING.
• Court: Iowa Supreme Court

38 N.W.2d 105

240 Iowa 888

TAYLOR v. HORNING.

No. 47424.

Supreme Court of Iowa

June 14, 1949

Harold W. Vestermark, of Iowa City, for appellant.

Ries Dutcher & Osmundson, of Iowa City, for appellee.

GARFIELD Justice.

Three special defenses, see section 86.14, Code 1946, I.C.A., are pleaded in the amended answer of defendant Horning to claimant Taylor's petition for abitration filed with the industrial commissioner: (1) claimant was an independent contractor, not an employee, see Code section 85.61, subd. 3 par. c, I.C.A.; (2) defendant had no knowledge or notice of claimant's alleged injury within ninety days after its occurrence, see Code section 85.23, I.C.A.; and (3) claimant's employment was purely casual and not for the purpose of defendant's trade or business, see Code section 85.61, subd. 3, par. a, I.C.A.

After a hearing the deputy industrial commissioner as sole arbitrator sustained the first two of these defenses and accordingly denied compensation. He further held that while the work done by claimant was not for the purpose of defendant's trade or business it was not purely casual. The deputy therefore rejected the third defense.

Following a hearing before the industrial commissioner upon review, see Code section 86.24, I.C.A., at which additional evidence was presented by both parties the deputy's denial of compensation was affirmed on the grounds (1) claimant was an independent contractor and (2) his employment was purely casual and not for the purpose of defendant's trade or business. The commissioner's decision does not determine whether defendant had knowledge or notice of claimant's injury within ninety days after its occurrence.

Upon appeal to the district court the commissioner's decision was reversed and compensation awarded claimant on the grounds (1) the facts found by the commissioner do not support his order and (2) there is not sufficient competent evidence in the record to warrant such order, see Code section 86.30, I.C.A. From the judgment of the district court defendant has appealed to us. We are agreed the judgment appealed from cannot be affirmed and the commissioner's denial of compensation must be upheld.

We have frequently called attention to the functions of the industrial commissioner and the court in cases of this character. Where the facts are in dispute or reasonable minds may differ on the inferences fairly to be drawn therefrom the findings of the commissioner, in the absence of fraud, are conclusive. This is true even though the court might have arrived at a different conclusion from the evidence. If under the testimony there is a question which should have been presented to a jury, if trial were before a jury, then the court is bound by the commissioner's finding on such question. Unless it can be said as a matter of law from the record here that claimant was an employee and not an independent contractor at the time of his injury there is no ground for interfering with the commissioner's decision. See Code section 86.29, I.C.A.; Reddick v. Grand Union Tea Co., 230 Iowa 108, 114, 296 N.W. 800, 803, and citations; Reynolds v. George & Hoyt, 230 Iowa 1267, 1271, 300 N.W 530, 532; Yergey v. Montgomery Ward & Co., Iowa, 30 N.W.2d 153, 155.

There is sufficient competent evidence to support the commissioner's decision that claimant was an independent contractor, not an employee of defendant, at the time of his alleged injury (a hernia). It certainly cannot be said as a matter of law there was an employer-employee relationship. The status of claimant involves largely fact questions and not, as in Mallinger v. Webster City Oil Co., 211 Iowa 847, 234 N.W. 254, and some of our other decisions, the construction of a written contract between the parties. See Yergey v. Montgomery Ward & Co., supra, 30 N.W.2d 153, 156.

Our compensation act provides an independent contractor shall not be deemed an employee. See Code section 85.61, subd. 3, par. c, I.C.A. Since the act does not define 'independent contractor' resort must be had to the common law for its meaning. Mallinger v. Webster City Oil Co., supra, 211 Iowa 847, 850, 234 N.W. 254, and citation; Moorman Mfg. Co. v. Iowa Unemployment Comp. Comm., 230 Iowa 123, 136, 296 N.W. 791, 797; 58 Am.Jur., Workman's Comp., section 137; 71 C.J., Workmen's Comp. Acts, section 183, page 449; Annotation 134 A.L.R. 1029, 1030.

The term 'independent contractor' is defined and explained in Meredith Pub. Co. v. Iowa Employment Security Comm., 232 Iowa 666, 672-675, 6 N.W.2d 6, 10, 11, and authorities cited. See also Mallinger case, supra; Sanford v. Goodridge, 234 Iowa 1036, 1042, 13 N.W.2d 40, 43; Annotations 19 A.L.R. 226, 75 A.L.R. 725. Also Annotations 15 A.L.R. 735, 742, 19 A.L.R. 1168. In Sanford v. Goodridge, supra, we say an independent contractor is one who by virtue of his contract possesses independence in the manner and method of performing the work he has contracted to perform.

The authorities agree the principal test of an independent contractor, stated in various ways, is that he has the right to determine for himself the manner in which the specified result shall be accomplished. 32 Iowa Law Review 1, 19, and decisions cited. This and other tests are enumerated in the Mallinger case and later decisions which have quoted from it. Such other tests are substantially these: the existence of a contract for a certain piece of work at a fixed price, independent nature of his calling, his right to employ and supervise assistants, his obligation to furnish necessary tools and equipment, the time for which the workman is employed and that the work is not part of the regular business of the employer.

We will refer to some of the testimony which tends to support the conclusion claimant was an independent contractor. Defendant, an auditor employed by the state, purchased a barn on an acreage near Iowa City from one Weidner at a cost of $40. He intended to have the barn torn down and to use the lumber in a home he was about to build for himself in Iowa City. Claimant had worked as a common laborer for the University of Iowa for about 20 years and then, as he says, 'for the last three or four years I have been working for myself, for farmers and help put in their crops, and one thing another, and doing painting, carpenter work and odd jobs.'

Through a mutual acquaintance claimant learned defendant was looking for someone to tear down the barn and applied to him for the job. There is ample testimony that after the two men looked over the barn claimant first proposed to tear it down for $200 but they later agreed upon $185 as the price for which claimant should do the work. Defendant paid plaintiff for the completed job a total of $183 in three instalments and gave him a chicken 'roost' at an agreed price of $2.

It is true claimant maintains he was to be paid a dollar an hour for his work and that defendant paid in all $199 for that many hours of work. However, defendant's version of the testimony in this and some other respects is corroborated in the main by Weidner as well as by other evidence.

When the two men made their agreement defendant told claimant he wanted him to be careful not to break up the lumber taken from the barn. There is substantial evidence defendant did not otherwise attempt to control claimant as to the manner and method of doing the work and that both men contemplated defendant should not have such right of control.

After claimant had worked about three days he hired his friend Popkins, who had worked with claimant on other occasions, to help him tear down the barn. Defendant, corroborated by Weidner, insists he had nothing to do with Popkins' employment. Claimant says he told defendant he needed help and defendant told him to get a man.

Claimant used his own car to go to and from the work and used his own tools and equipment. Claimant and Popkins selected their own hours of work although claimant says they both worked eight hours a day. Claimant did not keep track of their time nor did he furnish defendant a statement of the time they worked. It...