Walker v. Speeder Mach. Corp.

• Decision Date: 09 February 1932
• Docket Number: No. 40995.,40995.
• Citation: 213 Iowa 1134,240 N.W. 725
• Parties: WALKER v. SPEEDER MACHINERY CORPORATION ET AL.
• Court: Iowa Supreme Court

213 Iowa 1134

240 N.W. 725

WALKER

v.SPEEDER MACHINERY CORPORATION ET AL.

No. 40995.

Supreme Court of Iowa.

Feb. 9, 1932.

Appeal from District Court, Linn County; Atherton B. Clark, Judge.

Action brought by Mabel J. Walker, appellee, widow of Charles E. Walker, to recover Workmen's Compensation on account of fatal injuries sustained by Charles E. Walker on February 23, 1930, in Pittsburgh, Pa. It is claimed that the injury arose out of and in the course of Walker's employment with the appellant, Speeder Machinery Corporation. The trial court approved of the findings of the industrial commissioner in favor of plaintiff-appellee, and the defendants appeal. The facts appear in the opinion.

Affirmed.

Carl F. Jordan, of Cedar Rapids, for appellants.

Havner, Flick, Huebner & Powers, of Des Moines, and Calhoun & Calhoun, of Keosauqua, for appellee.

GRIMM, J.

On May 17, 1930, there was filed with the Industrial Commissioner an application for arbitration in which said application the Speeder Machinery Corporation is designated as “employer,” and the Continental Casualty Company is designated as “insurance carrier.”

It is claimed, in substance, that Charles E. Walker was an employee of the Speeder Machinery Corporation, which company is engaged in manufacturing machinery, and has its principal office and place of business in Cedar Rapids, Iowa, and that Walker was employed as a demonstrator and expert repair man, and that he was subject to call to go to any point to demonstrate or repair a machine. On the particular trip in controversy, he was sent first to points in Ohio and from there was ordered, by wire, to report at Pittsburgh, Pa. It is claimed that he engaged a room in a hotel at Pittsburgh and from there went out to secure a meal; that while crossing the street he was injured by an automobile, from which injury, in the course of three or four days, he died without having regained consciousness. The claimant is the surviving spouse, and the mother of decedent's four minor children.

It is alleged that the injury was incurred while the decedent was in the line of duty and while acting within the scope of his employment.

On May 23, 1930, there was an answer filed to the petition for arbitration, in which said answer the Speeder Machinery Corporation is designated as “employer,” the Continental Casualty Company as “insurance carrier,” and as “Defendants.” The body of the answer is as follows: “The respondent above named for answer to plaintiff's petition respectfully states: that they deny each and every allegation set forth in claimant's application and particularly denies that Charles Ernest Walker came to his death by reason of any cause or thing whatsoever growing out of or connected with his employment.”

There was first an arbitration decision and petition for a review by the industrial commissioner, finding by the commissioner, and a trial to the district court of Linn county, Iowa. In each instance, there was a finding for the plaintiff. The trial court granted a decree against both defendants. Many claims are made on behalf of the defendants, some of which only, we feel, need consideration.

I. The appellant claims that the court committed error in rendering judgment against the Continental Casualty Company, hereinafter for the sake of brevity, called “the insurer.” It will be noted that the insurer is one of the defendants named in the application for arbitration. Likewise, in the answer to the petition for arbitration, while the attorney appearing designates himself attorney for respondent, nevertheless, he answers “that they (meaning both defendants) deny each and every allegation,” etc. There also appears in the record a stipulation, as follows: “It was further stipulated that on February 23rd, 1930 and subsequent thereto, the Speeder Machinery Corporation of Cedar Rapids, Iowa was operating under the Workmen's Compensation Act and the Continental Casualty Company was carrying the workmen's insurance for such corporation. * * * It was further stipulated that the Defendants had due, timely, and legal knowledge of the fact that on or about the 23rd day of February, 1930, Charles Ernest Walker sustained a personal injury in an automobile accident, which resulted in his death and that claim was being made by this claimant against the Defendants on account of said fatal injury.”

At various times during the trial, the attorney for the respondent filed objections in form, as follows: “The defendants object to the introduction of. * * *”

There also appears from the abstract the following: “After the arbitration decision, the defendants duly filed their petition for review by the Iowa Industrial Commissioner.”

The petition for review naming the Speeder Machinery Corporation as employer and the Continental Casualty Company as insurance carrier, as defendants, contained the following: “Comes now the Defendants and each of them and petition for a review as by law provided and they, and each of them ask the Commissioner to fix a time for hearing of this case in review and notify the parties.”

The notice of appeal to the district court of Linn county, Iowa, being entitled as above, contains the following:

“Comes now the Defendants and each of them and as provided by law, appeal to the District Court of Linn County, Iowa from the decision and findings of the Iowa Industrial Commissioner in the above entitled case upon the ground

1. That the Commissioner acted without or in excess of his powers.

2. The facts found by the Commissioner do not support the order or decree.

3. There is not sufficient competent evidence in the record to warrant the making of the order or decision.

And the Commissioner is asked to forthwith notify the parties in interest and to certify the record at the office of the Clerk of the District Court of Linn County, Iowa at Cedar Rapids, Iowa together with all documents in the case, including depositions and a transcript of certificate of the affidavits together with this notice of appeal.”

[1] Nowhere was the question raised that the insurance carrier was not a proper party defendant. The case was tried throughout in behalf of both of the parties defendant without such objection. Under such a record, the question of jurisdiction over the insurance carrier cannot be raised in this court for the first time. We make no pronouncement as to whether the insurance carrier is a proper or necessary party in such a proceeding.

[2][3] II. The appellant contends that a certain letter, Claimant's Exhibit F, alleged to have been written by the decedent to his wife, which letter was introduced in evidence, is incompetent. The letter is undated, and the record does not disclose when it was written or sent. Upon the record in this particular case, this exhibit was not admissible, and it should not have been given consideration by the commissioner or the court. There was, however, competent evidence in the record upon the subject covered by the letter, and its introduction, though erroneous, was not reversible. See Renner v. Model Laundry, Cleaning & Dyeing Co., 191 Iowa, 1288, 184 N. W. 611;Hinrichs v. Davenport Locomotive Works, 203 Iowa, 1395, 214 N. W. 585;Swim v. Central Iowa Fuel Co., 204 Iowa, 546, 215 N. W. 603.

[4] III. The appellant strenuously contends that Exhibit G, which purports to be a certified copy of a death certificate certified by the state registrar concerning the death of Walker, should not have been admitted. It is material, if at all, only because it contains the following: “The cause of death was as follows: Fracture of skull and pulmonary edema following being struck by an automobile at Baum Blvd. and Beatty St.”

We need not determine whether this instrument was properly admitted or not, for the reason that there is in the record a stipulation, as follows: “It is stipulated by and between the parties to the above entitled proceeding that shortly after nine o'clock P. M. February 23, 1930, Charles E. Walker was struck and fatally injured by an automobile as he was crossing Baum Blvd. at or near the intersection of Beatty Street and Baum Blvd. in the city of Pittsburgh, Pennsylvania.”

It will thus be seen that all of the material portion of the certified copy of the death certificate was put into the record by stipulation of the parties, and whether the instrument was properly introduced or not is a moot question which we will not determine.

We do not find it necessary to set out the proper course of procedure introducing documents of this character. We are only to be understood as holding hereby that this particular offer, Exhibit G, whether properly introduced or not, worked no prejudice, under the record as here presented.

[5] IV. It is next claimed by the appellant that much of the testimony given by the appellee should have been stricken because hearsay. This court has said in Swim v. Central Iowa Fuel Co., 204 Iowa, 546, loc. cit. 549, 215 N. W. 603, 604, which was an action to recover compensation concerning the hearsay ruling, the following: “We cannot agree to the proposition that the rule against the admission of hearsay evidence as proof of a fact is a mere technical rule of evidence. The rule against hearsay evidence is more than a mere artificial technicality of law. It is founded upon the experience, common knowledge, and conduct of mankind. See Englebretson v. Industrial Acc. Comm., 170 Cal. 793, 151 P. 421;Olson-Hall v. Industrial Comm., 71 Colo. 228, 205 P. 527.”

The record does not show that any objections were made to the questions, nor were there motions made to strike each of the answers as and when they were given; but the motion comes at the conclusion of the testimony. Moreover, it is a broad sweeping motion, very difficult, if not impossible, of application, and, in the form in which it was put, was properly overruled.

[6] V. The appellant very extensively argues objections to the introduction of certain evidence, both when introduced by oral...