Winn v. Town of Anthon

• Decision Date: 12 March 1917
• Docket Number: 31132
• Citation: 161 N.W. 642,179 Iowa 620
• Parties: LOUISE A. WINN, Administratrix, Appellee, v. TOWN OF ANTHON, Appellant
• Court: Iowa Supreme Court

161 N.W. 642

179 Iowa 620

LOUISE A. WINN, Administratrix, Appellee, v. TOWN OF ANTHON, Appellant

No. 31132

Supreme Court of Iowa, Des Moines

March 12, 1917

Appeal from Woodbury District Court.--JOHN W. ANDERSON, Judge.

ACTION to recover damages for personal injury. Verdict and judgment for the plaintiff. Defendant appeals.

Affirmed.

Shull Gill, Sammis & Stilwell and H. B. Walling, for appellant.

Henderson & Fribourg and O. D. Nickle, for appellee.

GAYNOR C. J. LADD, EVANS, and SALINGER, JJ., concur.

OPINION

GAYNOR, C. J.

This action is brought by the administratrix of the estate of one Lester R. Winn to recover damages, based on alleged negligence of the defendant town, resulting in his death. It is claimed that the deceased was an employee of the defendant town's, and engaged in operating an engine in its water plant. The answer was a general denial, contributory negligence and assumption of risk. There was a verdict for the plaintiff, and judgment was entered against the defendant, and from this, defendant appeals.

Defendant is an incorporated town with a population of about 700 people. It owned and operated a waterworks system for the purpose of supplying water to the inhabitants of the town. The power used was produced by the use of a gasoline engine. One Sheffield was duly appointed marshal by the city, and among his duties as such was to operate the water plant and the pump used in connection therewith. Winn the deceased, was employed by Sheffield. Sheffield's employment began about the 1st of July, 1912. The next day after he was employed by the city, he employed the deceased, Winn, to run this water plant and operate the pump. Deceased continued in this employment from the 1st of July, 1912, until his death, which occurred on January 27, 1913.

In stating her cause of action against the town, the plaintiff specifies two grounds of negligence, but one of which we will consider, to wit: That certain set screws were used upon the shafting which connects the engine and pump, and that these were so placed as to protrude 1 1/2 inches above the surface of this shafting; that this shafting was left wholly unguarded, with these screw heads so projecting, rendering the shafting dangerous and unsafe when in operation.

One question material to this controversy is, Was the decedent an employee of the defendant's or a mere volunteer or trespasser? The record discloses that Sheffield was employed by the town as its marshal; that as such he assumed and was charged with certain duties, among which was to operate the waterworks and pump in question. The evidence is conclusive that, the next morning after he was so employed, he obtained the services of Winn and installed him in charge of this plant, with the duty of operating the pump and waterworks; or, in other words, discharging those duties, so far as the operation of the water plant is concerned, which Sheffield assumed under his employment with the defendant.

The contention of the defendant is that Sheffield had no authority to employ the plaintiff; that no member of the council knew of Winn's employment; that Sheffield employed Winn on his own account and paid him out of his own pocket to do the work; that it had no knowledge that the conditions existed of which complaint is made; that it was in no way responsible for those conditions; that, at the time Sheffield was employed by the town, and at the time Winn took charge of the water plant, there were no set screws in the shafting with heads projecting; that the condition complained of did not then exist; that, if any change was made in the shafting, touching head screws, that rendered the shafting dangerous, these changes occurred while Winn had charge; that either he changed the head screws himself, and brought about the condition that caused his injury, or that he permitted or suffered someone to do it while having charge of the shafting, and that the change, if any made, was not known to the town or communicated to the town by him or anyone else; that he brought about, or suffered to be brought about, the condition which rendered the shafting perilous--the condition which it is claimed caused the injuries resulting in his death.

We take up the first proposition: Was Winn rightfully in charge of the work with the knowledge and consent of the town, actual or implied? That he was performing services for the town and its inhabitants, this record leaves no doubt. He entered upon this work about the 1st of July, 1912, and continued openly about the work and in discharge of these duties until he was injured, on January 27, 1913, and was there daily. It is true Sheffield employed Winn on his own account and paid him out of his own pocket. Winn's general business consisted of work in an elevator situated near this plant. This plant was located between Winn's home and the elevator in which he worked. He was employed by Sheffield to start and stop the engine and pump at appropriate intervals.

It is urged that, because the town owned this water plant, and had undertaken, through its proper officers, to furnish water to the town through this instrumentality, it had a right to and did employ a suitable and proper person to discharge these duties, and, in doing this, selected Sheffield; that Sheffield's act in employing the plaintiff and paying him out of his own pocket did not charge the town with any duty to the party so employed; that it could not be held, without notice to it, either expressed or implied, that Winn was attempting to discharge any duties for and in behalf of the defendant, in connection with this plant.

Upon this point we cannot do better than repeat in substance what was said in this same case in the opinion filed in February, 1915, and reported in 168 Iowa 699, 703: That some degree of supervision of the plant and its machinery devolved upon him (Sheffield), although it appeared that the ultimate and general supervision was reserved to the town council. He (Sheffield) employed Winn the next day after his own appointment. The defendant is a town of 600 or 700 people. The plant is located close to the business part of town. There was no concealment or bad faith on the part of Winn. Sheffield furnished him with a key. His services were performed openly and to the knowledge of citizens of the town. In November, the clutch became out of repair. This was reported by Winn to Sheffield, who reported it to the town council. Sheffield and Winn removed the clutch, and a member of the town council came and examined it. Afterwards, it was sent off for repairs. When it was returned, Winn assisted again in replacing it. It is claimed, however, that Winn was not actually present when the councilman took the clutch for repairs.

It is said in that opinion that there was direct evidence of actual knowledge of Councilman Lucas of Winn's work, and perhaps the same ought to be said as to Councilman Meyers. The record on this trial does not affirmatively show that fact, but it is our judgment, under the record as made, that the jury could well have found actual knowledge of the councilmen of the fact of Winn's employment, and the fact that he was rendering services for the town in and about the plant in...