Trullinger v. Fremont County
| Decision Date | 04 May 1937 |
| Docket Number | 43859. |
| Citation | 273 N.W. 124,223 Iowa 677 |
| Parties | TRULLINGER v. FREMONT COUNTY. |
| Court | Iowa Supreme Court |
Appeal from District Court, Fremont County; Grover W. Brown, Judge.
This is an action brought by plaintiff against defendant under the Workmen's Compensation Law for injury received in the course of his employment. Following the procedure provided by the statute the question was submitted to the deputy industrial commission, who found for the plaintiff. On appeal to the commissioner this ruling was reversed, and on further appeal to the district court plaintiff's petition was dismissed. Defendant county answered admitting the formal allegations of its corporate capacity and power, admitting that plaintiff was injured while constructing a trench silo for one Raymond, and alleging that, since plaintiff was engaged in an agricultural pursuit or operation immediately connected therewith, he was not entitled to compensation under the statute. The facts will be found in the opinion. Plaintiff appeals.
Reversed and remanded, with instructions.
Genung & Genung, of Glenwood, for appellant.
Miller, Miller & Miller, of Des Moines, for appellee.
The difficulty we have had in reaching what seems to us to be the right application of legal principles to the cause before us has been out of all proportion to the ease with which the question may be stated. Here it is: Is the appellant entitled to workmen's compensation on a record the facts of which are substantially as follows?
We purposely omit reference to the corporate capacity of the appellee, the powers of its board of supervisors and their control of the affairs of the county in this branch of public activity. There was no dispute on this point.
Appellant from some time in April, 1934, was a member of the road department of the appellee county. Because of the drought during 1934 he had not worked all the time, and was not guaranteed steady time. He was employed to operate a tractor at a fixed rate per hour, during certain hours of the day. His work was to drive a tractor for road grading and maintenance, working under one Reavis, an employee of the county, who was in charge of the equipment and acting as foreman over the appellant. Reavis received his orders from the board. In the course of the road work appellant operated the tractor and Reavis operated the blade. In the summer of 1934, road work having been discontinued because of the drought, an arrangement was made by the board under which trench silos were to be dug and were dug for different farmers in the county. Under this arrangement the farmers were to pay the county the wages of the men employed and the cost of the gas and oil for the operation of the tractor, and nothing for the use of the tractor itself. The purpose of this arrangement was both to keep the men at work, so far as possible, and to help the farmers. Appellant had assisted in digging ten or eleven of these silos, among them one for one Martin. This was done at the direction of the county engineer. Before going to work for Martin, the county engineer, being asked by appellant if it was necessary for him to wait until the end of the month for his pay, answered that it would be all right to collect the money from Martin and Martin paid him, as did one Gee. This arrangement was made on orders of Reavis, appellant's immediate superior.
On October 10, 1934, Reavis directed appellant to go to the farm of Raymond and dig a trench silo there. Nothing was said in advance as to how appellant was to be paid, and he expected to wait until the end of the month for his money. Following instructions of Reavis, appellant undertook on the next day, by the use of the county tractor, to dig the trench; and while so doing sustained grievous injuries, incurring large expense for medical service and hospitalization. The trench silos which appellant was engaged in excavating as above stated averaged from 50 to 200 feet in length, were about 12 feet at the top, 8 feet at the bottom, and 8 to 10 feet deep. In their use by the farmers ensilage is placed in them, packed down and covered with straw and dirt, for the purpose of preserving it. It should be added that with the arrangement between the county board and the various farmers for the digging of silos appellant had no connection. He did not come in contact with the farmers in any way save as he performed work on their lands, nor was he to receive any wages or compensation from them. The statement above made with reference to Martin and Gee having paid the appellant directly was objected to by the appellant on the ground that same was immaterial, but the merits of this objection we do not stop to consider.
An excursion in foreign jurisdictions on the question involved has persuaded us that there is much confusion and conflict in the decisions on the Workmen's Compensation Law (Code 1935, § 1361 et seq.) as applied to analogous circumstances. This conflict arises in part from the difference in wording of the statutes, and partly from the difference in which the matter was looked at by the courts of last resort. A large number of cases decided by the different states, under varying conditions under which the question arose, will be found gathered together in these citations: Notes to 7 A.L.R. 1296; 13 A.L.R. 955; 35 A.L.R. 208; 43 A.L.R. 954; supplemental decisions in 1936 A.L.R. Blue Book; and pocket supplement to the volume last named.
That this court has had its difficulties with the same question is apparent from Oliphant v. Hawkinson, 192 Iowa, 1259, 183 N.W. 805, 33 A.L.R. 1433, with its dissenting opinion. To this we shall have occasion to refer again.
While we have had before us on a number of occasions questions touching the Workmen's Compensation Law there are only three which seem to have such directness of bearing as to call for examination herein. One is the Oliphant Case, already referred to; and the others are Sylcord v. Horn, 179 Iowa, 936, 162 N.W. 249, 252, 7 A.L.R. 1285, and Taverner v. Anderson, 220 Iowa, 151, 261 N.W. 610, 611.
Before proceeding to an examination of the cases, we quote paragraph 3, section 1361 of the Code of 1935: As listed among those exempted from the operation of the law:
" Persons engaged in agriculture, in so far 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."
It will be noticed that, according to this language, those persons engaged in " agricultural pursuits or any operations immediately connected therewith, whether on or off the premises of the employer" (italics ours), are exempted from the operation of the law; or, to state it in the language of the Code itself, " this chapter shall not apply to:" among others, the class of persons mentioned and described in the above-quoted paragraph 3.
A reading of this section indicates that the question before us is, Was appellant engaged in agricultural pursuits or any operation immediately connected therewith?
Another question which arises in the mind of the writer is this: Does the word " employer" mean only the person who hires and pays the workman, or is it comprehensive enough to include any one within the purview of the statute, without reference to the question who the employer actually is? While this thought is inherent in and incidental to what follows, we do not feel it necessary to decide the question, and we do not do so.
The Sylcord Case, supra, was one in which the defendant was the owner of a corn shredder and appurtenances belonging thereto, and was engaged as an independent contractor in the business of operating said corn shredding machine for profit. Plaintiff, in the employ of the defendant, while operating this shredder on the farm of one Swaney, sustained the injuries for which he made claim. The case turns upon a matter of pleading, but this court was called on to express its views on the general principles involved. After discussing matters which we need not go into now, the opinion says:
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