Tepesch v. Johnson
| Decision Date | 11 March 1941 |
| Docket Number | 45411. |
| Citation | 296 N.W. 740,230 Iowa 37 |
| Parties | TEPESCH v. JOHNSON. |
| Court | Iowa Supreme Court |
Appeal from District Court, Allamakee County; W. L. Eichendorf Judge.
Application for award under the Workmen's Compensation Act, Code 1939, § 1361 et seq. The Industrial Commissioner denied relief on the ground that claimant was engaged in purely casual employment and not for the purpose of the employer's trade or business. Claimant appeals from an affirmance by the district court of the decision of the Industrial Commissioner.
Affirmed.
Hart & Hart, of Waukon, for appellant.
Arthur H. Jacobson and G. Belvel Richter, both of Waukon, for appellee.
Code section 1421 provides in part: The Industrial Commissioner, reversing the Deputy Commissioner to whom the matter was originally submitted, held that appellant's employment was " purely casual" and " not for the purpose of the employer's trade or business." The trial court affirmed the commissioner. Unless this finding is not supported by competent evidence, this court will not disturb it. If the evidence presents a question of fact which the court should submit to a jury, if the case were triable to a jury, then the determination of the facts by the commissioner is conclusive upon the courts. Sinclair v. McDonald, 229 Iowa 1234, 1236, 296 N.W. 362; Smith v. Soldiers' and Sailors' Memorial Hospital, 210 Iowa 691, 694 231 N.W. 490, 492.
Appellee was a rural mail carrier residing in Waukon. He engaged appellant, a carpenter, to reshingle the roof of his private garage situated on the same lot with the residence in which he and his wife lived. Appellee rented out no part of his house or garage. The garage held two cars, one of which was principally used by appellee on his mail route, and the other for family purposes. After appellant had applied a few rows of shingles and on the first morning he worked, he fell to the ground, sustaining a serious injury to his back. The shingling was completed by another workman in two days. Appellant testified he was employed not only to reshingle the garage roof but also to install two new sets of overhead doors which would turn up under the ceiling when opened. Appellee flatly denied any employment regarding the doors. The industrial commissioner found that even if the doors were to be hung, the entire job would not take to exceed 4 or 5 days. Appellant's testimony was, however, that it would have taken him two weeks to shingle the roof and install the doors. This finding of the commissioner as to time we believe is a fair deduction from the evidence. Two or three years before, appellant had helped shingle appellee's house. Four or five years before, appellant had put on a porch door and in 1928 he had built a table in the kitchen of appellee's house.
The term " casual" is in common use. As Justice Evans observed when speaking for the court in Pfister v. Doon Electric Co., 199 Iowa 548, 551, 202 N.W. 371, 373, " It is less difficult to recognize such ‘ casual’ employment when it is presented in a given case than it is to lay down a rule or definition that can become decisive of every case." In Bedard v. Sweinhart, 186 Iowa 655, 657, 172 N.W. 937, the word " casual" is defined as " ‘ coming without regularity; occasional; incidental; ’ ‘ coming at uncertain times or without regularity in distinction from stated or regular; ’ ‘ a laborer or an artisan employed only irregularly." ’ See, also, for definitions of the term " casual," Herbig v. Walton Auto Co., 191 Iowa 394, 182 N.W. 204; Porter v. Mapleton Electric L. Co., 191 Iowa 1031, 183 N.W. 803, and Gardner v. Trustees, 217 Iowa 1390, 250 N.W. 740.
As to the purpose of the statute excepting " purely casual" employment from the benefits of the compensation act, this court said in the Pfister case, supra, page 551 of 199 Iowa 202 N.W. page 373: " The purpose of the proviso * * * was to narrow or to withdraw the application of the broader terms of the statute from those ‘ casual’ employments, which are more or less incidental to the life of everybody."
We do not feel justified in disturbing the finding of the commissioner that the employment of appellant was purely casual. In arriving at this conclusion we give some weight to the fact that appellee's business, if it can be called such, of carrying mail is not one in which appellee ordinarily employed labor. We quote again from the Pfister case, supra, page 552 of 199 Iowa, page 373 of 202 N.W.:
That appellant's employment was purely casual within both the letter and spirit of the statute see the cases hereinbefore cited, especially Bedard v. Sweinhart and Oliphant v. Hawkinson, and, in addition, Dial v. Coleman's Lunch, 217 Iowa 945, 251 N.W. 33, and Tunnicliff v. Bettendorf, 204 Iowa 168, 214 N.W. 516.
But it is not sufficient to exempt appellant from the benefits of the compensation statutes that his employment was purely casual. It must also appear that such employment was " not for the purpose of the employer's trade or business." Unless the employment is both purely casual and outside the purpose of the employer's trade or business it does not come within this exception to the act. The meaning of the statute, in this regard, is thoroughly explained in Gardner v. Trustees, 217 Iowa 1390, 250 N.W. 740.
Appellant argues that his employment was for the purpose of appellee's trade or business; that appellee's business was that of rural mail carrier; that his automobile...
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