Oliphant v. Hawkinson

Faville, J. 1' servant f ^work-üatfon Acocas-uai employment. The facts in this case are without any substantial dispute in the record. One Jacob Wachal was a retired farmer, living in the town of Walker, Linn County, Iowa. He owned a farm, situated about two miles from said town, which he leased to a tenant, who oe-cupied and operated the same. Some time prior ^ accident in question, Wachal entered into an agreement with the tenant to tear down an old eorncrib then — 1261 — located on the farm and bnild a new one in its place, and in pursuance of such arrangement, tore down the old corncrib and put in a cement foundation for a new one. On or about the 25th day of July, 1916, Wachal employed the appellee and three other men, all of whom were carpenters, to go to the farm and build the new corncrib. He hired each of said men by the hour, and arranged for taking them to the farm in an automobile, to do the work. The men were taken out, and commenced the operation of building the new crib. They had been so employed about an hour and a half, when the appellee, who was engaged in measuring some work on the foundation, came behind a fellow workman, who was drawing a nail with a pinch-bar; and the end of the bar flew back, striking the appellee in the right eye, destroying the sight. It is for this injury that compensation is claimed. The remaining employees completed the work of building the corncrib in about five or sis days. The appellee made proper application, as provided by statute, for compensation under the Workmen’s Compensation Act, and was awarded compensation by the industrial commissioner; and, on appeal to the district court of Linn County, Iowa, the action awarding such compensation was affirmed. Since said time, the said Wachal has died, and the appellant, as executor of his estate, has been substituted in the case. The question for our determination is whether or not, on said state of facts, the appellee is entitled to compensation under the Workmen’s Compensation Act, as it existed at the time of the injury. I. Section 2477-m of the Code Supplement, 1913, provides as follows: “(a) Except as by this act otherwise provided, it shall be conclusively presumed that every employer as defined by this act has elected to provide, secure and pay compensation according to the terms, conditions, and provisions of this act for any and all personal injuries sustained by an employee arising out of and in the course of the employment; and in such cases the employer shall be relieved from other liability for recovery of damages or other compensation for such per — 1262 — sonal injury, unless by the terms of this act otherwise provided; but this act shall not apply to any household or domestic servant, farm or other laborer engaged in agricultural pursuits, nor persons whose employment is of a casual nature. ’ ’ Section 2477-ml6, Code Supplement, 1913, Paragraph b, provides as follows: “ ‘Workman’ is used synonymously with ‘employee,’ and means any person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship for an employer, except a person whose employment is purely casual and not for the purpose of the employer’s trade or business or those engaged in clerical work only, * * *” At the outset, it is well to notice that this statute has been materially changed by Section 10 of Chapter 270, Acts of the Thirty-seventh General Assembly. By said act, the word “and” in said Section 2477-m16, Paragraph b, is changed to the word “or,” and as the law now stands, this paragraph excepts from the provisions of the act persons whose employment is “purely casual” or whose employment is “not for the purpose of the employer’s trade or business.” We had occasion to discuss this change in the statute in the recent case of Herbig v. Walton Auto Co., 191 Iowa 394. The instant case arose, however, before, the amendment to the statute, and we were compelled to consider it in the light of the statute as originally enacted. It will be observed that Section 2477-m provides that the act “shall not apply to persons whose employment is of a casual nature.” And Section 2477-m16, in defining who is a workman, excepts from the provisions of the statute a “person whose employment is purely casual and not for the purpose of the employer’s trade or business.” So we have the situation that, under Section 2477-m, all persons “whose employment is of a casual nature” are excepted from the provisions of the act. Under Section 2477-m16, Paragraph b, there is excepted from the definition of a workman “a person whose employment is purely casual and not for the purpose of the employer’s trade or business." The two sections must be read together, in order to arrive at the intention of the legislature in enacting the statute. Standing alone, the first section exempts from the provisions of — 1263 — tbe statute any person whose employment is casual. Section 2477-m16, as originally enacted, places an apparent limitation upon tbe provisions of Section 2477-m, in providing that tbe workman, to be outside tbe act, shall not only be one whose employment is purely casual, but also one whose employment is not for tbe purpose of tbe employer’s trade or business. Under tbe latter section, as originally enacted, and, as applicable to this case, it is evident that, in order that tbe act shall not apply, tbe “workman” must be one “whose employment is purely casual” and also one whose employment is not “for tbe purpose of tbe employer’s trade or business.” In considering this case, we shall regard it as coming, under Section 2477-ml6, as originally enacted, and must squarely meet tbe question: “Was tbe appellee a person whose employment was ‘purely casual’ and ‘not for tbe purpose of tbe employer’s trade or business?’ ” If be was, then be was not entitled to compensation under tbe act. If be was not, then be was entitled to compensation, and tbe award made was' correct. 2 statutes-but beyona intent. II. In Uphoff v. Industrial Board, 271 Ill. 312 (111 N. E. 128), tbe Supreme Court of Illinois construed tbe Workmen’s Compensation Law of that state, in a case where a landowner employed a party to help build a broom-corn sked on farm- The employee, while working on building, was injured by a piece of metal which flew from á hammer be was using, and struck him in tbe eye. Tbe court said: "The intention of the lawmakers is the law. This intention is to be gathered from the necessity or reason of the enactment and the meaning of the words, enlarged or restricted according to their real intent. In construing a statute, the courts are not confined to the literal meaning of the words. A thing within the intention is regarded within the statute, though not within the letter. A thing within, the letter is not within the statute, if not also within the intention. When the intention can be collected from the statute, words may be modified or altered, so as to obviate all inconsistency with such intention. (Hoyne v. Danisch, 264 Ill. 467.) When great inconvenience or absurd consequences will result from a particular construction, that construction should be avoided, unless the meaning of the legisla — 1264 — ture be so plain and manifest that avoidance is impossible. (People v. Wren, 4 Scam. 269.) The courts are bound to presume that absurd consequences leading to great injustice were not contemplated by the legislature, and a construction should be adopted that it may be reasonable to presume was contemplated. (2 Lewis’ Sutherland on Stat. Const. Section 489; People v. City of Chicago, 152 Ill. 546; Canal Com. v. Sanitary District, 184 Ill. 597.) A statute is passed as a whole, and not in parts or sections; hence each part or section should be construed in connection with every other part or section. In order to get the real intention of the legislature, attention must not be confined to the one section to be construed. (Warner v. King, 267 Ill. 82, and cited cases.) ” We approve of this pronouncement. With this thought in mind, let us examine the statute in question. It is a comprehensive scheme, enacted for the benefit of both the employer and employee engaged in industrial employment. The statute, as it stood at the time this injury occurred, declares that: “ ‘Industrial employment’ includes only employment in occupation, callings, businesses or pursuits which are carried on by the employer for the sake of pecuniary gain.” Code Supplement, 1913, 2477-m16, Paragraph h. It also provides (Section 2477-m) that: “This act shall not apply to any household or domestic servant, farm or other laborer engaged in agricultural pursuits.” It also provides, Section 2477-m41, Code Supplement, 1913: “Every employer subject to the provisions of this act shall insure his liability thereunder in some corporation, association or organization approved by the state department of insurance. ’ ’ The statute also has provisions requiring every employer subject thereto, if he does not accept the provisions of the act before “beginning business,” to file a notice with the Iowa Industrial Commissioner of his rejection of the terms, conditions, and provisions of the act, and requiring that the employer shall keep a copy of such notice posted in some conspicuous place “at the place where the business is carried on.” By amendment to the statute, an employer who fails to insure his — 1265 — liability is made subject to indictment if be fails to post and to keep posted in the immediate vicinity of the place where his employees are working, a notice of such failure to insure. See Acts of the Thirty-seventh General Assembly, Chapter 270, Section 20. The evident purpose of the legislature in the enactment of this statute was to apply it to “industrial employment,” to “occupations, callings, businesses, and pursuits carried on for the sake of pecuniary gain. ’ ’ It was intended obviously to apply to cases where employers in industrial pursuits, outside of those excepted in the statute, carried on a business for pecuniary gain, and engaged employees to work for them in the prosecution of such business. By the very terms of the act, those whose employment in such business was “casual” did not come under its provisions. It was clearly the intention of the legislature that, where an employer engaged some employee whose services were “purely casual,” he should not be required to take out insurance to cover such employee while engaged in such casual service, or to post notices of the rejection of the act, if he did reject it. What is casual employment, within the meaning of this act, must be determined by the facts of each particular case. We have had occasion to pass upon this question and to review the authorities in Bedard v. Sweinhart, 186 Iowa 655; Herbig v. Walton Auto Co., supra, and Porter v. Mapleton Elec. Light Co., 191 Iowa 1031. Following these decisions, under the facts in this case, we hold that the employment of the appellee to assist in the building of a eorncrib on the farm owned by Wachal was of a casual nature, within the meaning of this statute. „ „ servant: worktion Act: “em- or business.” III. As before stated, under Section 2477-m16 it is contended that, before the workman is excluded from the provisions of the act, it must appear, not only that his employment was casual, but also that it was not for the purpose of the employer’s trade or business. It may be conceded that the original statute should be so construed. It does not necessarily follow, however, that, under the facts of this case, the employment of the appellee was “for the purpose of the employer’s trade or business,” within the meaning of this statute. What “trade or — 1266 — business,” what "occupation, calling, business, or pursuit,” was carried on by the employer for the sake of pecuniary gain, that brought this employee within the provisions of this act? Wachal was a retired farmer, living in a little town. So far as the record shows, he was engaged in no active occupation, calling, business, or pursuit. He belonged to that large class that has been produced somewhat prolifically in Iowa, known as ‘ ‘ retired farmers.” He owned a farm near the town in which he lived, which he rented to a tenant for a term of years. The tenant' was in possession under a written lease, with the usual rights of a tenant. Whether or not Wachal collected his own rents or had someone do it for him does not appear from the record'. His rights in and about the farm were only those which a landlord has with a tenant in possession. He had agreed with this tenant that he would have an old corncrib on the farm tom down and a neAV one built in its place. The record is not just clear as to who had torn down the old crib, but in any event the appellee had had nothing to do with it. Wachal hired the appellee, with'three others, to go out to the farm and erect the neiv crib, a job which was completed by three men in five or six days. The situation is neither unusual nor exceptional, within this state. We cannot be unmindful of the fact that there are few, if any, cities or towns of this state that do not disclose in repeated instances the same kind of situation that is evidenced here. Numeróus "retired farmers” live in the cities and towns ’of Iowa, and own land which they lease to tenants who are in possession thereof. Sueh owners frequently employ different persons, from time to time, to make needed repairs or improvements on their farms. If this statute applies to all sueh cases, then sueh a landowner could not hire a man to mend a fence, to fix a gate, to repair a pump, to restore shingles on a roof, to patch up a chimney, or to do any one of the numerous things that are necessary and are constantly being done, to keep up premises so oAvned, without being under the necessity of taking out an insurance policy every time a man is hired to do such work; or else such owner would be compelled to post a notice, in a conspicuous place near the work, of the rejection of the Workmen’s Compensation Act, and to serve such notice on the — 1267 — industrial commissioner at Des Moines; and, under the statute as it now stands, he would be guilty of a misdemeanor for failure so to do. . We do not believe that the legislature of Iowa ever intended that this act should be construed in any such way, or that its terms were ever intended to include any such employment as being “industrial employment for pecuniary gain.” Wachal’s “business” was not that of house building. He was not carrying on any such occupation, calling, business, or pursuit for pecuniary gain. Under the very language of the statute, this employment of appellee was not “for the purpose of the employer’s trade or business.” Wachal had no trade or business, within the meaning of this act. The fact that he owned a farm and leased it did not bring him within the class contemplated by this statute as “an employer.” He was not engaged in any “industrial employment for pecuniary gain,” within the purview of this statute. It is undoubtedly true that a man may have more than one business or occupation. He may come under this statute in one instance and not in another; but we are not prepared to hold that a retired farmer, living in town and leasing his farm, is engaged in ‘ ‘ an industrial business, ’ ’ as contemplated by this act, because he hires three or four men to build a corncrib on his rented farm, and that he must, before doing so, take out an insurance policy, and otherwise comply with the terms and provisions of the Workmen’s Compensation Act. We hold that such a construction and application of the law were never intended by the legislature. We are not without support for this conclusion in the authorities. In State v. District Court, 138 Minn. 103 (164 N. W. 366), the Supreme Court of Minnesota considered a somewhat similar case. In that case, the defendant owned a farm near the village of Osakis, which he rented to a tenant. The defendant lived in the village, where he dealt in horses and did some auto livery and other business on a small scale. The barn on his farm was destroyed by fire. He employed the relator in the case and four other men to erect a temporary shed on the farm, and took them to the place. While engaged in the work, the relator was hit in the eye by a nail, and injured. It was claimed that the — 1268 — work came within the business, trade, profession, or occupation of the defendant, and was, therefore, covered by the "Workmen’s Compensation Statute of that state, although it was casual in character. It was argued that it was part of the defendant’s business as a landlord to erect or repair the necessary structures on the farm. The statute was similar to our statute as it was at the time this cause of action originated, in providing that the statute should not apply to those whose employment was casual and not in the usual course of the trade, business, profession, or occupation of the employer. It will be noticed that, under the Minnesota statute, the phrases are conjunctive. The court said: “Assuming that the lease obligated defendant to erect a shelter for his tenant’s stock, or that he had voluntarily agreed so to do, we may say, in a certain sense, that the erection became his business or duty. But that cannot be the meaning of the word ‘business’ in this statute. It must have the same general significance with respect to the work or calling of the employer as the words ‘trade, profession, or occupation;’ hence must refer to the employer’s ordinary vocation, and not to every occasional, incidental, or insignificant work he may have to do. When we speak of a person’s trade or profession, we generally refer to that branch of the world’s activities wherein, he expends his usual everyday efforts to gain a livelihood. There is no evidence that defendant made it a part of his calling to rent out farms or erect buildings, either temporary structures or permanent. For all that appears, this was the only farm he owned, and it may have been of such small area and value that its renting and care could not properly be classified either as a business or occupation. And certainly neither the renting of the farm nor the construction of this shed can be referred to as coming within the ‘usual course’ of defendant’s business or occupation. ’ ’ The language is pertinent to the instant case. It is true that the Minnesota statute (General Statutes, 1913, Section 8202) provides that it shall not apply to those whose employment is not in the “usual course of the trade, business, profession, or occupation of its employer,” and that our statute follows the language of the English act, omitting the words ‘ ‘ usual — 1269 — course.” Commenting on this phase, the Supreme Court of Minnesota says: “Even the English act has been so construed that the facts of this case would not warrant compensation. It is said to afford compensation for injuries received only in the normal operations which form the part of the ordinary business carried on, and not to include incidental and occasional operations having for their purpose the preservation of the premises and appliances used in the business. Hayes v. S. J. Thompson Co., 6 B. W. C. C. 130, Rennie v. Reed, 1 B. W. C. C. 324; Pearce v. London & S. W. R. Co., 82 L. T. R. 487; Bargewell v. Daniel, 98 L. T. R. 257; Kelly v. Buchanan, 47 Ir. L. T. R. 228; Alderman v. Warren, 9 B. W. C. C. 507.” Under the English decisions construing a statute similar to ours, the act would not apply to a case like the one at bar. In Bargewell v. Daniel, 98 L. T. R. 257, the court considered the case of a workman who earned his living doing repair work. The defendant, Daniel, owned certain cottages, which were leased to tenants. She collected her own rent, made her own repairs, and had no other business or occupation. She hired the complainant to make repairs on one of her cottages; and while so employed, he was injured. The Master of the Rolls said: “Therefore, the plaintiff was not a workman, within the act, unless he was employed for the purposes of the employer’s trade or business. It is pot suggested the defendant was carrying on a trade. Was she carrying on a business in which the plaintiff could be employed? It seems to me she was not. * * * But Section 13 of the act provides that a workman within the act does not include a person whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer’s trade or business. The intention was that the act should not apply, in such a ease, to the ordinary owner of property, who was not carrying on any trade or business.” In Kelly v. Buchanan, 47 Ir. L. T. R. 228, decided under the English act, the defendant was a shopkeeper, who owned certain dwellings adjoining his place of business, which dwellings he rented to tenants. He hired the plaintiff to do some work on one of these buildings, and while so engaged, plaintiff was injured. The court said: — 1270 — “The facts are very plain. Here we have a man who carries on the business of a shopkeeper in a house, and at the back there are some houses, converted from cow houses into residences; he brings in a man to repair one of them, and we are asked to say that this casual laborer was employed for the purposes of the employer’s trade or business. The decision of the county court judge was wrong, and we must allow the appeal.” In Uphoff v. Industrial Board, supra, a landowner employed the complainant to help build a broom-corn shed on the former’s farm. While so doing, he was injured. The Workmen’s Compensation Act of Illinois applies to “an employer engaged in any of the following occupations, enterprises, or businesses, namely: 1. The building, maintaining, repairing, or demolishing of any structure." The Supreme Court said: “It is contended by counsel for defendants in error that plaintiff in error must be held to come under the provisions of the act, under Subdivision 1 of Paragraph (b) of Section 3, as the broom-corn shed would be included in the provisions of that section, in the building ‘of any structure.’ This could only be true if it were held that, in so building such broom-corn shed, the farmer was engaged in an occupation, enterprise, or business, and was engaged in the usual course of his ‘trade, business, profession, or occupation,’ and that the employment was not casual.” It was held that there was no liability, under the statute. In Holbrook v. Olympia Hotel Co., 200 Mich. 597 (166 N. W. 876), the owner of a hotel caused the rooms to be painted and decorated, from time to time. A workman, while so engaged, was injured. The statute of Michigan provides that it shall not include “any person whose employment is but casual, or not in the usual course of the trade, business, profession, or occupation of his employer.” The Supreme Court of that state said: “It is clear that the law contemplates that there may be an employment of labor, not in the usual course of the business of the employer, in which employment the risks of injury not occasioned by the employer’s fault are assumed by the workman. It would seem that occasionally renovating the rooms of a building, or the building itself, owned and occupied by the — 1271 — owner as a borne, witb paint or paper or botb, is not in tbe usual course of tbe trade, business, profession, or occupation of tbe owner, unless be is bimself in tbe business of painting and decorating. No reason can be found for concluding that tbe owner of a hotel is pursuing his business, within tbe meaning of the law, when be causes tbe rooms to be occasionally painted and decorated, although it is usual to have work of that nature done from time to time.” In Packett v. Moretown Creamery Co., 91 Vt. 97 (99 Atl. 638), a creamery company employed a contractor and builder to erect a new creamery building. In construing tbe statute of Vermont, tbe Supreme Court of that state said: “Tbe true test is, Did tbe work being done pertain to tbe business, trade, or occupation of tbe creamery company, carried on by it for pecuniary gain ? If so, the fact that it was being done through tbe medium of an independent contractor would not relieve tbe company from liability. Tbe finding of tbe board is that the creamery company, at tbe time of tbe injury, was engaged in tbe creamery business. There is nothing to show that tbe company was engaged in the business of erecting buildings, unless such is tbe effect of tbe fact that Flynn was erecting for it a building under a contract which made him an independent contractor, and not an employee. But such is not tbe reasonable interpretation of employment ‘for tbe purpose of tbe employer’s trade or business,’ and ‘in a trade or occupation * * * carried on * * * for tbe sake of pecuniary gain.’ It would be quite as reasonable to say that Flynn was engaged in the creamery business, in contemplation of the act, as that tbe creamery company was engaged in the business of erecting buildings. As well say that a farmer who lets a contract to build a barn or corncrib on bis premises is engaged in tbe business of contractor and builder, or that the business of tbe contractor, while thus engaged, is that of farming.” We prefer to adopt the reasoning and conclusions of the foregoing authorities, rather than that of the Supreme Court of Wisconsin in Holmen Creamery Assn. v. Industrial Com., 167 Wis. 470 (167 N. W. 808), and other similar cases decided by that court. On this branch of tbe case, we bold that the appellee, at — 1272 — the time of the injury, was not employed “for the purpose of the employer’s trade or business,” within the meaning of the Workmen’s Compensation Act. IV. It is claimed, however, that a corncrib was a necessary adjunct to the successful operation of the farm; that the owner received “pecuniary gain” by having the same constructed; and that, therefore, causing the corncrib to be built was part of his “business.” As before stated, we do not believe the legislature ever intended that any such interpretation should be placed upon this act, and we so hold. But if we should accept the construction contended for, then we are at once brought face to face with the provisions of Section 2477-m, which declares that the act “shall not apply to any household or domestic servant, farm or other laborer engaged in agricultural pursuits. ’ ’ If Wachal was engaged in any “trade or business” at all, it was the care, upkeep, and improvement of his farm. If this is to be denominated a “business” or “pursuit,” it was more nearly an “agricultural pursuit” than anything else. If the building of the corncrib was necessary for the proper conduct of the “business” of operating the farm, then it may be said with much plausibility that it was an ' ‘ agricultural pursuit. ’ ’ In Sylcord v. Horn, 179 Iowa 936, we considered this question, and held that an employee engaged in operating a corn shredder was “a farm laborer or other laborer engaged in agricultural pursuits,” and within the exception of the act. It has been held that an employee on a farm who is required to repair a tractor and is injured while so engaged is a “farm laborer,” within the meaning of the Compensation Act. Maryland Cas. Co. v. Pillsbury, 172 Cal. 748 (158 Pac. 1031). In Coleman v. Bartholomew, 175 App. Div. 122 (161 N. Y. Supp. 560), it is held that a farm hand engaged in repairing a barn is, nevertheless, a farm laborer. An employee hired to help operate a threshing machine that was used to thresh grain for farmers generally about the country was held to be a “farm laborer,” within the meaning of the Compensation Act, in State v. District Court, 140 Minn. 398 (168 N. W. 130). In Miller & Lux v. Industrial Acc. Com., 179 Cal. 764 (178 Pac. 960), the Supreme Court of California held that, where an — 1273 — employer hired a wagon maker to work in a shop solely to repair vehicles and machinery used by the employer in his farming operations, the employee was “engaged in farm labor,” within the meaning of the Workmen’s Compensation Act, although he devoted his entire time to work in the wagon shop. In Stevenson v. Magill, 35 N. D. 576 (160 N. W. 700), it is held that a cook for a threshing crew is a “farm laborer.” In view of our conclusion on the other features of the case, it is unnecessary that we determine the question of whether or not the appellee was “a laborer engaged in agricultural pursuits,” and we do not make any pronouncement on that question, further than 'to observe that, as above indicated, there is respectable authority to sustain such a conclusion. A dissent is filed herewith. We note the facetious manner in which the writer of the dissent has seen fit to treat this division of this opinion. Notwithstanding the jocular animadversions of the dissenter, we still modestly insist that we do no great violence to the proprieties in referring to the pronouncements of the appellate courts of California, New York, Minnesota, and North Dakota as “respectable authority.” The suggestion that the majority would hold that the physician whom a farmer calls to officiate at the birth of his child, or the minister who is called to perform a marriage ceremony, is engaged in “agricultural pursuits” is a splendid example of that fine sense of humor which has so greatly endeared the writer of the dissent to the profession of this state. But our distinguished colleague has placed himself in the somewhat uncomfortable position of being “hoist on his own petard.” The logical deduction from his interpretation of the statute, in his endeavor to make it all-embracing, would be that, before a so-called “employer” could summon an accoucheur or a clergyman, it would be necessary for him to insure his liability with the state department of insurance, or else he would be compelled, in the language of the statute, “before(beginning business,” to file notice with the Iowa industrial commissioner of his rejection of the terms of the act, and to keep a copy posted in some conspicuous place where the “business” is carried on. At the risk of incurring the vigorous accusation of attempting to “modify or alter” the statute, we hope to prevent such an inter — 1274 — pretation from being placed upon it. Tbe writer of the dissent has happily designated the proper word to describe the situation into which he would lead us. It is “ absurd. ’ ’ We hold that the purpose or intention of the legislature in enacting the Workmen’s Compensation Act was not to include within its terms and provisions such an employment as is disclosed by the record in this case. We hold that the employment of the appellee by Wachal was casual, and that it was not for the purpose of the employer’s trade or business, within the meaning of the act. It therefore follows that the appellee was not entitled to compensation under the provisions of the Workmen’s Compensation Act, and that the action of the industrial commissioner and the district court of Linn County, in awarding compensation, was erroneous. The judgment appealed from must be, and the same is,— Reversed. EvaNS, C. J., SteveNS, Abtiiur, and De G-eaee, JJ., concur. WeaveR and Preston-, JJ., dissent.