Glidden Rural Electric Co-Operative v. Iowa Employment Security Commission , 236 Iowa 910 ( 1945 )

[1] The action is in equity by the Glidden Rural Electric Cooperative, as plaintiff, against the Iowa Employment Security Commission, as defendant, to cancel assessments of unemployment-compensation tax levied against plaintiff by defendant for the years 1937, 1938, 1939, and 1940.

The trial court denied plaintiff's claim, dismissed its petition, and this appeal followed.

I. The action being in equity is triable here de novo. There are no disputed facts. Appellant is a co-operative corporation organized under chapter 390.1, Code of Iowa, 1939, relating to co-operative associations organized after July 4, 1933. Its principal place of business is in Carroll, Iowa, and its transmission lines extend into several adjoining counties. Its objects and purposes are as set forth in Article IV, subsection 1, of its articles of incorporation, and are as follows:

"[A] To generate, manufacture, purchase, acquire and accumulate electric energy for its members and to transmit, distribute, furnish, sell and dispose of such electric energy to its members; and [B] to construct, erect, purchase, lease as lessee, and in any manner acquire, own, hold, maintain, operate, sell, dispose of, lease as lessor, exchange and mortgage plants, buildings, works, machinery, supplies, apparatus, equipment and transmission and distribution lines or systems necessary, convenient or useful for carrying out and accomplishing any of the foregoing purposes * * *."

Appellant does not produce or generate electric power but has at all times purchased such product from the municipal plant of Glidden, Iowa, and distributed it to the members. It had about 428 miles of transmission line and about 940 members when the case was tried. When it was organized and received its permit on August 26, 1936, it had no physical property such as plant, transmission lines, or service connections. Not having the proper and necessary equipment to build transmission lines, it let contracts for their construction. Such lines were built under certain specifications and when built and accepted became a part of its co-operative system. Contracts were entered into for such line construction with the Hoak Construction Company as follows: In 1936, 55 miles; in 1938, 90 miles; in 1939, 124 miles. One contract was let to the Evans Construction Company in 1939 for 90 to 110 miles. All of these contracts were carried out; the transmission lines were built and accepted and are now a part of appellant's system. Service connections for the individual members were made as the transmission lines were being built. Following the building of the transmission lines all service connections for new members were made by the appellant. In all, appellant made about fifty to sixty of such service connections.

The Hoak Construction Company and the Evans Construction Company were in the business of constructing electric transmission and distribution lines during the rural electrification program. The former constructed such lines in Calhoun county, ``Crawford county, Cherokee county, Guthrie county, and Greene county. The latter, during the same period, constructed similar lines in Plymouth county, Cherokee county, and Pocahontas county.

At the time the contracts were being carried out on the transmission lines for appellant the principal contractors paid for their various employees to the state of Iowa the state unemployment compensation. Later appellee decided that at the time the transmission lines were being built for appellant the employees of the contracting companies were to be counted as employees of appellant, thereby making the latter liable for the tax upon its other employees. This action on the part of the appellee is the basis of this action.

Appellant never had working for it at any one time eight employees and it was only by adding to the number of its employees those employed by either the Hoak Construction Company or the Evans Construction Company in building the transmission lines that the tax was made possible. The appellee concedes that in case the employees of the two contractors of the various transmission lines cannot be added to the regular employees of appellant, then there is no tax payable. It will thus be seen that one of the issues herein is whether or not the employees of the Hoak Construction Company or the Evans Construction Company in building the transmission lines must be deemed employees of appellant within the provisions of chapter 77.2 of the 1939 Code. The assessment in the instant case is by reason of the provisions of section 1551.25, subsection E, of said chapter, the material portion of which, so far as this appeal is concerned, provides as follows:

"Whenever any employing unit contracts with or has under it any contractor or subcontractor for any work which is part of its usual trade, occupation, profession, or business, unless the employing unit as well as each such contractor or subcontractor is an employer by reason of subsection ``F' or section 1551.14, subsection ``C', the employing unit shall for all the purposes of this chapter be deemed to employ each individual in the employ of each such contractor or subcontractor for each day during which such individual is engaged in performing such work."

In its decree the trial court said:

"The only question for determination, therefore, is whether the work done by the contractors who built all of the plaintiff's primary lines and the greater part of its secondary lines was a part of the plaintiff's ``usual trade, occupation, profession, or business' within the contemplation of the above quoted statute [section 1551.25 (E), Code of 1939].

"The court finds that the business of the cooperative as expressed in its articles is to accomplish its corporate purpose of generating or acquiring electricity and providing transmission lines, primary and secondary, for distribution to its members; that plaintiff's transmission and distribution lines are the very instrumentalities by which, and by which alone, plaintiff does, or can, either receive or deliver the electricity; that the work of constructing such lines is an actual, integral and operative part of the business of transmitting and distributing electricity — the very process and part of that business, and that the construction of the transmission lines and the distribution system by independent contractors was a part of the usual business of the plaintiff Glidden Rural Electric Cooperative."

Thereafter the court denied the petition of appellant and confirmed the tax imposed by appellee.

II. Was the work done by the contracting firms in building the various units of the transmission lines for appellant a part of appellant's "usual trade, occupation, profession, or business" within the meaning of section 1551.25 (E), Code of Iowa, 1939? We think this to be the decisive question in this case. The trial court answered this question in the affirmative, thus holding that such workmen were employees of appellant and that the work performed by them was a part of the usual business of appellant.

Following a careful study of the record, the statutes, and the authorities, we are of the opinion that the trial court erred in so holding.

Appellant at no time built any primary transmission lines and had no equipment for that purpose. All such lines used by it were built by independent contractors. The only lines built by the appellant were of a secondary nature, connecting customers with its primary lines after they had been built.

Both parties are in agreement that the "usual" business of appellant is that of the transmission of electricity. Concerning this the trial court held that, inasmuch as the usual business of appellant was the transmission and distribution of electricity, in order to do so it had to have transmission lines; that such transmission lines were instrumentalities for doing so; and therefore, the work of constructing such lines was "an actual, integral and operative part of the business of transmitting and distributing electricity." It will be seen that the trial court held that the building and installing of all things necessary to carry on the business of appellant were necessarily a part of its usual business. This would seem to narrow the issue, as applied to the statute above referred to, that the building of the transmission lines was a part of the usual business of appellant.

Appellant and appellee are unable to agree as to the meaning of the word "usual" in the statute. The appellant argues that in connection with the statute the word "usual" means the same as the word "regular" and is to be taken in its ordinary everyday meaning and that the usual business of appellant is to distribute electricity. On the other hand, appellee argues that the word "usual" as used by the legislature was in the sense of "essential to" or a "necessary part of" the business or for the "purpose" of such business, and that as in this case the transmission lines were essential to the distribution of electricity their building was a part of the "usual business" of appellant. We think that appellant's view as to the particular statute under construction is correct.

[2] III. In the construction of statutes, words are to be given their ordinary meaning unless the context shows a contrary intent on the part of the legislature. Section 63 (2), Code of 1939; Des Moines City Ry. v. City of Des Moines, 205 Iowa 495, 216 N.W. 284; State ex rel. Ingram v. Larson, 224 Iowa 509,275 N.W. 566; State v. Carson, 147 Iowa 561, 126 N.W. 698, 140 Am. St. Rep. 330; Model Laundry Co. v. Barnett, 180 Iowa 55,162 N.W. 830.

[3] We do not find that this court has expressly construed the word "usual" when used in connection with the section under consideration. However, we have discussed the term in connection with the Workmen's Compensation Act, Code, 1939, section 1361 et seq., in Garrison v. Gortler, 234 Iowa 541, 13 N.W.2d 358. We will later have some comment on this holding.

Below we set out authorities from opinions and other sources as to the meaning given to the term "usual."

"Usual" means "accustomed; ordinary." Ballentine's Law Dict. 1323.

"Usual" means "customary; ordinary; habitual; common." Webster's New International Dict., Second Ed., 2807.

"Usual" means such as is in common use; such as occurs in ordinary practice, or in the ordinary course of events; customary; ordinary; habitual. "Usual" is synonymous with custom, common, wonted, ordinary, regular. Dancy v. Abraham Bros. Packing Co., 171 Tenn. 311, 102 S.W.2d 526, 528; Roberts Coal Co. v. Corder Coal Co., 143 Va. 133, 129 S.E. 341; Chicago A.R. Co. v. House, 172 Ill. 601, 50 N.E. 151; Swisher v. Illinois Cent. R. Co., 182 Ill. 533, 55 N.E. 555.

In Oilmen's Reciprocal Assn. v. Gilleland, Tex. Com. App.,291 S.W. 197, the Texas court, in a workmen's-compensation case, defined the term "usual" when used in connection with the term "usual business," as meaning such as was in common use or occurring in ordinary practice or course of events; customary; ordinary; habitual; common; wonted; regular. Morse v. New Amsterdam Cas. Co., D.C., Tex., 30 F.2d 974, affirmed, 5 Cir., Tex., 37 F.2d 100; Wolfe v. Bryant, 181 Tenn. 357,181 S.W.2d 343. See, also, St. Louis Southwestern Ry. Co. v. Morrow, Tex. Civ. App., 93 S.W. 162. In 66 C.J. 119, it is stated that the word "usual" means the same as ordinary.

The Texas court, in the case of Texas Employers' Ins. Assn. v. Wright, 128 Tex. 242, 244, 97 S.W.2d 171, 172, in upholding a denial of compensation, stated that the case was ruled by the holding in Oilmen's Reciprocal Assn. v. Gilleland, supra. In discussing, under the compensation statute, Vernon's Texas Stats., art. 8306 et seq., the terms "employee" and the "usual course of trade, business, profession or occupation of the employer," the court said:

"The usual trade or business of Diamond Mill and Elevator Company was, according to the undisputed evidence, the milling of grain and the selling of flour and feed, not the construction of buildings. Defendant in error's original employment as sweeper in the mill was in the usual course of such business, but it is the character of the work being done at the time of the injury and not the contract of employment that determines whether the employee is engaged in the usual course of the business. Wells v. Lumbermen's Reciprocal Association (Com.App.), 6 S.W.2d 346; Fidelity Union Casualty Co. v. Carey (Com.App.), 55 S.W.2d 795. Defendant in error at the time of his injury was working for the mill and elevator company and in accordance with its direction, but he was not engaged in the performance of work in the usual course of the trade or business of the company. He therefore was not an employee within the statutory definition and is not entitled to compensation under the statute. To hold otherwise would be to ignore and give no effect to the word ``usual' contained in the definition."

The case of Lackey v. Industrial Comm., 80 Colo. 112, 114,249 P. 662, 663, was an action to recover compensation under the Colorado statute wherein the term as applied to the employee excluded such where such employment is "not in the usual course of trade, business, profession, or occupation of his employer." Laws 1923, 751, section 9 (b). Claimant was injured while helping pull down a building upon which a filling station was being erected. The award of the commissioner was overruled. The court said:

"We do not think that the erection of a building can be said to be within the usual course of a business to be carried on in that building unless, perhaps, such business be the business of building and the structure be erected in the course of that business. Suppose a building contractor resolves to go into the hotel business, and for that purpose erects the hotel himself. The erection of that hotel may be in the usual course of his business as building contractor but how can it be said that it is in the usual course of his business as a hotel keeper? He is an innkeeper when he opens his house for guests, not before. He is a filling station keeper when he opens his place to fill, not before. Illustrations and analogies might be multiplied without end. We must say that neither the preparation for the erection of a building for the filling station nor the erection of it was within the usual course of business of farming or keeping a filling station."

In Ostlie v. Dirks Son, 189 Minn. 34, 36, 248 N.W. 283, 284, it was held that an electrician installing wiring in a building rented by an employer, when injured was not engaged "in the usual course of business of the employer." The claim was made under the workmen's-compensation statute. In its opinion the court said:

"A person may, of course, be engaged in more than one business. The renting of this one apartment, however, cannot properly be classified as a business or occupation in and of itself. The word ``business' as used in 1 Mason Minn. St. 1927, § 4268, was defined in State ex rel. Lennon v. District Court, 138 Minn. 103, 106,164 N.W. 366, 368, as referring ``to the employer's ordinary vocation, and not to every occasional, incidental, or insignificant work he may have to do.' See Billmayer v. Sanford,177 Minn. 465, 225 N.W. 426; Sink v. Pharaoh, 170 Minn. 137,212 N.W. 192, 50 A.L.R. 1173.

"To hold otherwise than we have here would result in awarding compensation to an injured employe hired to do work, no matter how remote that work may be from the usual business of the employer. Such a holding would be contrary not only to the letter but to the purpose and intent of the statute. Upon the facts the employment here in question was not covered by the workmen's compensation act [Minn. St. 1927, § 4261 et seq. as amended] and the award must be set aside. So ordered."

In Gaines v. Traders General Ins. Co., Tex. Civ. App.,99 S.W.2d 984, 988, there was a claim for compensation because of an injury to a carpenter hired on a per diem basis by a wholesale meat dealer in constructing a cold-storage room in a new building being built for the meat dealer. The compensation act of the state excluded, among others, "one whose employment is not in the usual course of trade, business, profession or occupation of his employer." In confirming a denial of compensation, the Texas court said:

"We think it is plain, under repeated decisions construing said statute, that appellant's injury did not occur while engaged as an employee in the usual course of the business of his employer. The usual business of a wholesale meat dealer does not include the construction of new buildings. Practically this identical question was decided by Judge Powell in Oilmen's Reciprocal Ass'n. v. Gilleland, (Tex.Com.App.) 291 S.W. 197, 201; see, also, Croswell v. Commercial Standard Ins. Co. (Tex.Civ.App.),58 S.W.2d 918, 921)."

Both parties to this appeal have cited the rather recent case of Garrison v. Gortler, supra. This was a claim under the Workmen's Compensation Act. The claimant was repairing a roof of a retail grocery and meat business. While he was carrying a heavy roll of roofing material to repair the roof, the ladder broke; claimant fell on a cement walk and was injured. The claim was resisted principally on the ground that claimant was an independent contractor, that his employment was casual and was not for the employer's trade or business. This court held that claimant was in the employment of the owner when injured and was doing work for the purpose of the latter's trade or business. The writer of the opinion, Bliss, J., dealt at length with the history of the compensation act and the statutes of Iowa having application. In discussing the term "for the purpose of the appellee's [owner] trade or business," he stated, at page 544 of234 Iowa, page 359 of 13 N.W.2d:

"The application of the exception clause found in all definitions of the word ``employee,' * * * has troubled the courts of this country and of England since their enactment."

In the Garrison case attention was called to various compensation acts and the difference of interpretation to be had in statutes wherein the word "usual" was used in connection with a business and those where the term was not used, holding that the use of the term "usual" was restrictive. We quote from page 547 of 234 Iowa, page 360 of 13 N.W.2d:

"It is clearly apparent that the language ``for the purpose of the trade or business' is much broader and more inclusive than the words ``within the usual or regular course of the trade or business.' The first expression includes everything that the latter includes * * * Work done in the ``usual course' necessarily would be work done ``for the purpose' of the business, but work done ``for the purpose' of the business might very well not be ``within the usual course' of the business * * *."

The appellee has cited cases supporting its construction placed upon the term "usual," almost all of which are from other jurisdictions. We have examined these cases and find language in some of them which on its face tends to such support. Some of such seem to arise by reason of the differences in statutes and the rules of statutory construction; some, because of the fact situation. Appellee admits that in the cases conflicts exist: that some of the holdings cannot be reconciled.

Appellee cites several cases from Iowa but seems to rely mainly upon the language of the court in the case of Gardner v. Trustees M.E. Church, 217 Iowa 1390, 250 N.W. 740. Without going into an analysis of the cited case, we call attention to the fact that the language of the court relied upon has been declared to be dictum in our latest holding, Garrison v. Gortler, supra. The court itself in the Gardner case said as much in its opinion.

To accept appellee's view of this matter we would have to hold that the term "usual business" of appellant meant all things done by appellant in the preparation for and distribution of its product — electricity. We are unwilling to so construe the statute.

The record is undisputed that the usual business of appellant was the distribution of electricity after its primary line had been constructed by independent contractors. As applied to appellant, such construction work was uniformly delegated to others. Such business was that of independent contractors alone. It was not a part of appellant's accustomed, customary, habitual, common, wonted, regular business in ordinary practice, or in the ordinary course of events. Accordingly, the workmen engaged by the independent contractors in such construction work are not deemed to be employees of appellant under the provisions of subsection E of section 1551.25, Code of 1939. The trial court erred in so holding.

Various other matters have been set forth and argued in this appeal. All have been considered. However, in view of our finding as above set forth we find it unnecessary to pass thereon.

The judgment must be and it is reversed and the cause is remanded for the entry of a decree in harmony with this opinion. — Reversed and remanded.

MILLER, C.J., and SMITH, HALE, and WENNERSTRUM, JJ., concur.

MULRONEY, BLISS, GARFIELD, and OLIVER, JJ., dissent.