Hassebroch v. Weaver Construction Company , 246 Iowa 622 ( 1954 )

Garfield, C. J.

We observe at the outset that appellant’s opening brief disregards rule 344, Rules of Civil Procedure, in that it contains no statement of the case, the facts, or errors relied on for reversal. The argument contains only three references to the record — two to testimony of one witness, the other to the trial court’s judgment. The volume and page in the Iowa Reports are not given for some of the cases cited, as required by rule 344(e). A reasonable effort should have been made to comply with rule 344.

The controversy before the deputy industrial commissioner as sole arbitrator and the commissioner upon review was whether claimant’s decedent, Ervin Hassebroch, was, at the time he wasi fatally injured, an employee of defendant Weaver Construction Company or an independent contractor. Both the deputy and commissioner found he was not an employee but an independent contractor and denied compensation. The district court held there was sufficient competent evidence to warrant the commissioner’s decision and affirmed it. Claimant has appealed to us. We affirm the district court.

Although we have frequently called attention to the functions of the industrial commissioner and the court in cases of this character it seems desirable to do so once more. “* * * In tbe absence of fraud the findings of fact made by the industrial commissioner * * * shall be conclusive.” Section 86.29, Code, 1954. Insofar as here applicable section 86.30 provides any decision of the commissioner “may be modified, reversed, or set aside on one or more of the following grounds and on no other: * * * 3. If the facts found by the commissioner do not support the order or decree. 4. If there is not sufficient competent evidence * * to warrant * * * the order or decision.” There is no claim of fraud here.

In our latest pronouncement regarding these statutory provisions, Bocian v. Armour & Co., 244 Iowa 304, 306, 56 N.W.2d 900, 901, 902 (Smith, C. J.), we say: “We have repeatedly and consistently construed these provisions as making the commissioner’s findings of fact conclusive where the evidence is in dispute or reasonable minds may differ on the inference fairly to be drawn from the facts. Taylor v. Horning, 240 Iowa 888, 890, 38 N.W.2d 105; Bruner v. Klassi, 241 Iowa 1007, 1011, 44 N.W.2d 366; Reynolds v. George &. Hoyt, 230 Iowa 1267, 1271, 300 N.W. 530; Lindahl v. L. O. Boggs Co., 236 Iowa 296, 307, 18 N.W.2d 607, are some of the more recent cases. The real test is the sufficiency of the evidence to support the finding [citations]. The finding of the commissioner is on the same footing as a jury verdict [citations].”

Some decisions other than Bocian v. Armour & Co., supra, and the four cited therein which hold the commissioner’s findings of fact are conclusive where the evidence is in dispute or reasonable minds may differ on the inferences fairly to be drawn therefrom are: Schmidt v. Pittsburgh Plate Glass Co., 243 Iowa 1307, 1316, 55 N.W.2d 227, 232; Yergey v. Montgomery Ward & Co., 239 Iowa 258, 264, 30 N.W.2d 153, 155; Reddick v. Grand Union Tea Co., 230 Iowa 108, 114, 296 N.W. 800, 803, and citations; Everts v. Jorgensen, 227 Iowa 818, 828, 289 N.W. 11; Gardner v. Trustees of M. E. Church, 217 Iowa 1390, 1401, 250 N.W. 740, 745; Enfield v. The Certain-Teed Prod. Co., 211 Iowa 1004, 1008, 233 N.W. 141; Norton v. Day Coal Co., 192 Iowa 160, 162, 180 N.W. 905.

Gardner v. Trustees of M. E. Church, supra, states: “It is the settled law of this state that, although there is no conflict in the evidence, if the facts are such that different conclusions can reasonably be reached therefrom, then the question becomes one of fact for the determination of the commissioner. Can we say, as a matter of law, that all minds would reasonably reach the same conclusion under the evidence in this record * * *? If not, then the question was one of fact for the determination of the industrial commissioner, and his findings thereon are final.”

Reddick v. Grand Union Tea Co., supra, says: “Where the facts are in dispute, or where reasonable minds may differ on the inferences fairly to be drawn from the proven facts and circumstances, the findings of the commissioner are conclusive. And this is true even though the court might arrive at a different conclusion from the evidence. If the evidence presents a question which should have been submitted to the jury, if the trial were before a jury, then the court is bound by the findings of the commissioner.” (Emphasis added.)

The Gardner and Reddick cases, just quoted from, have been followed several times.

See also 27 Am. Jur., Independent Contractors, section 60; 57 C. J. S., Master and Servant, section 617a(5), which says: “Where the facts are in dispute or they are susceptible of more than one inference, the question is one of fact * * *. Where the facts are undisputed and the evidence is reasonably susceptible of but a single inference, the question whether the relationship of employer and independent contractor exists is one of law for the court.”

A few of our more recent precedents, not under the compensation act, which point out that an issue should be' submitted to a jury where the evidence is such that reasonable minds may reach different conclusions therefrom are Anderson v. Elliott, 244 Iowa 670, 673, 57 N.W.2d 792, 794 (“It is a question not only of whether there was a conflict in the evidence, but whether, even as to undisputed facts, they are such that reasonable minds might differ in interpreting them; * • • ”); Schneider v. Parish, 242 Iowa 1147, 1151, 49 N.W.2d 535, 537; Hebert v. Allen, 241 Iowa 684, 687, 41 N.W.2d 240, 242; Davis v. Knight, 239 Iowa 1338, 1341, 1342, 35 N.W.2d 23, 25; In re Estate of Coleman, 238 Iowa 768, 771, 28 N.W.2d 500, 503; Lawson v. Fordyce, 234 Iowa 632, 636, 12 N.W.2d 301, 303; Odegard v. Gregerson, 234 Iowa 325, 329, 330, 12 N.W.2d 559, 561.

Unless, then, it can be said as a matter of law from the record here that claimant’s decedent was an employee, not an independent contractor, at the time of his fatal injury, there is no ground for interfering with the commissioner’s decision. We think there is sufficient competent evidence to warrant the decision that decedent was an independent contractor and it cannot be held as a matter of law he was an employee.

Decedent’s status depends upon a determination of the facts or the reasonable inferences to be drawn therefrom and not, as in Mallinger v. Webster City Oil Co., 211 Iowa 847, 234 N.W. 254, and some of our other precedents, the construction of a written contract which is a matter for the court. See Yergey v. Montgomery Ward & Co., supra, 239 Iowa 258, 266, 30 N.W.2d 153, 156; Taylor v. Horning, 240 Iowa 888, 890, 38 N.W.2d 105, 107. The facts here are quite unlike those in the Mallinger ease, supra.

56 C. J. S., Master and Servant, section 13, says: “Ordinarily, the determination of the relationship of master and servant is a question of fact, but the question of the relation created by a written contract * * * is ordinarily one of law for the court * * *."

The compensation act provides an independent .contractor shall not be deemed an employee. Section 85.61, subsection 3b, Code, 1954. Since the act does not define “independent contractor” we have uniformly held it necessary to resort to the common law for its meaning. Taylor v. Horning, supra, and citations, at page 891 of 240 Iowa, page 107 of 38 N.W.2d.

The term “independent contractor” is defined and explained in Mallinger v. Webster City Oil Co., supra, 211 Iowa 847, 851, 234 N.W. 254; Meredith Pub. Co. v. Iowa Employment Security Comm., 232 Iowa 666, 672-675, 6 N.W.2d 6, 10, 11, and citations; Sanford v. Goodridge, 234 Iowa 1036, 1042, 13 N.W.2d 40, 43, where we say, “An independent contractor is one who, by virtue of his contract, possesses independence in the manner and method of performing the work he has contracted to perform * *

The principal accepted test of an independent contractor is that he is free to determine for himself the manner in which the specified result shall be accomplished. Article by Maurice H. Merrill, 32 Iowa Law Review 1, 19, and citations. See also McDonald v. Dodge, 231 Iowa 325, 328, 1 N.W.2d 280, 282, and citations; 56 C. J. S., Master and Servant, section 3(3). This and other tests are enumerated in Mallinger v. Webster City Oil Co., supra, 211 Iowa 847, 851, 234 N.W. 254, and several later decisions which quote from it. Such other tests are, in substance: the existence of a contract for a certain piece of work at a fixed price, independent nature of his calling, his right to hire and supervise assistants, his obligation to furnish necessary tools and equipment, the time for which he is employed, the method of payment — whether by the job or by time, whether the work is part of the employer’s regular business. See also 56 C. J. S., Master and Servant, section 3(2).

Restatement, Agency, section 220, sets out nine matters of fact which, with others, are considered in determining whether one is an employee or independent contractor. They are about the same as the tests given in the Mallinger case, supra, with this addition: whether or not the parties believe they are creating the relationship of master and servant. Comment b under section 220 states “it is for the triers of fact to determine whether or not there is a sufficient group of favorable factors to establish the relationship.”

We will refer to the testimony, some of which supports the commissioner’s conclusion decedent was an independent contractor. Defendant Weaver Construction Company (we call it Weaver) was engaged in the crushed rock and gravel business. It had a stationary plant at its quarry at Alden and portable plants, one of which was used in performing a written contract it had with Franklin County to gravel some secondary roads. Defendant had some trucks of its own, operated by men who were clearly its employees, which hauled gravel from the portable plant at a county-leased pit to the roads being surfaced. It also orally contracted with owners of other trucks to haul gravel from the portable plant to the roads. Decedent was one such owner.

Decedent was a farmer who owned three trucks and did a good deal of trucking business. He drove one truck himself and hired and paid two drivers for the others. All three trucks were hauling gravel for Weaver on this Franklin County Project (2-B).

One, possibly two, of decedent’s trucks had his name and telephone number painted thereon. Weaver had its name painted on its own trucks — not on others. Decedent paid for the gasoline, oil and repairs on his trucks and carried liability insurance on them. Weaver paid decedent on a ton-mile basis for the gravel hauled by his three trucks. The drivers of Weaver’s own trucks were paid by the hour. While Weaver fixed the route between the plant and surfacing operations as a basis for the mileage to be paid, decedent and his drivers were free to choose their own route. Decedent was not on the prescribed route with his empty truck when he was fatally injured.

Decedent had a right to hire and pay a substitute to drive for him without consulting Weaver and would collect from defendant on a ton-milé basis for the gravel hauled by the substitute. Decedent and his drivers determined the size of each load and were responsible for overloads. The different drivers arranged among themselves the order in which the trucks were loaded and moved away from the plant — they “took turns.” The county maintained an employee at the plant (or pit) to weigh each load and another man at the end of the haul who told the drivers where to dump their loads.

A driver for decedent testified there was no control over the speed at which his trucks operated. Decedent was not required to have any specified number of trucks on the job. Weaver had nothing to do with hiring decedent’s drivers and had no authority to discharge them. Decedent was not required to report for work if he did not want to. He could quit if he wanted to and Weaver had a right to terminate the relationship between them. If Weaver asked decedent or his drivers if they wanted to haul from a different pit they did not have to go. “We had the choice.” Sometimes drivers who did not dump properly were told to go somewhere else.

Decedent did trucking for others part of the time his trucks were engaged on Project 2-B. He bought crushed rock from Weaver, sold and delivered it to different customers of his. A few days before his fatal injury decedent applied to the Iowa Commerce Commission for a permit to act as a contract carrier under the name Hassebroch Truck Lines of J ewell, Iowa.

Weaver was subject to the so-called Wage and Hour law. The drivers of its own trucks worked regularly 40 hours per week and received “time and a half” hourly pay for overtime. Weaver deducted from their pay the federal withholding tax, social security and unemployment compensation. They were employed full time. If there was no trucking to do Weaver provided other work for them. Decedent and his drivers, however, did not work full time and there were no deductions from the am omit, paid decedent (on á ton-mile basis) except, as stated, for gasoline, oil or repairs decedent may have purchased at his option from Weaver.

At the review hearing before the commissioner George Gibson, Weaver’s general superintendent stationed at the pit, testified he gave no specific orders to decedent “other than, if he called and asked me if we had work for his two trucks I would let him know where the work was and when we would start. I called him sometimes. He was always anxious to get jobs. I would tell him where to report for work. * * * I can’t think of any orders I gave the drivers other than I was interested in keeping the plant running and getting the gravel on the road to finish this contract. If I had work available I called Hassebroch. He didn’t have to go to work if he didn’t want to. I told the drivers to pick up the oil cans as Mr. Pitsor told me he wanted the place cleaned up.” Pitsor evidently owned the land where the gravel pit was.

A driver for decedent testified that if the loads were too small “Gibson told us to keep them as full as possible” and once Gibson told him to drive as fast as he could because they were short on trucks.

Tbe above is a sufficient indication of tbe testimony except as to one matter. The contract between Weaver and Franklin County includes a standard specification prepared by the state highway commission which states “The contractor [Weaver] shall not assign or sublet any portion of his contract or the work provided therein without the written consent of the Board [county board of supervisors].” The board never gave any such written consent.

The chairman of the county board said he knew Weaver and other such contractors used outside truckers on these jobs and “we never objected to the practice” but that he knew nothing of Weaver’s relationship to the truckers. The administration engineer for the state highway commission testified the commission has not required counties to give written consent where the principal contractor hires so-called contractor outside haulers, owning and maintaining their own trucks, on a per ton-mile or unit basis.

The deputy commissioner as sole arbitrator, the commissioner on review and the district court upon appeal all considered the above provision of the contract between Weaver and the county and the absence of written consent to any subletting. All held these facts were not controlling as to the true relationship between Weaver and Hassebroch. The district court pointed out that decedent was not a party to the written contract between Weaver and the county, the agreement between decedent and Weaver rested in parol, its terms and effect were to be ascertained largely from the relevant conduct of the parties, if Weaver actually sublet part of the work the fact he had agreed not to do so without consent would not show more than that he had breached his promise to the county in failing to obtain consent.

Incidentally we may observe that another specification of the contract between Weaver and the county defines “independent contractor” as “any person * * * who contracts with the contractor to perform a service for which the basis of payment is in terms of units of service rather than salary or wages.” It seems clear, however, that decedent would not be bound by this provision of a contract to which he was not a party.

We think there is substantial evidence to support several if not all of the recognized tests of an independent contractor. Indeed able counsel for claimant frankly conceded in oral argument there are some elements in the case that tend to show decedent was an independent contractor. There is competent testimony that decedent was free to determine for himself the manner in which the specified result would be accomplished.

That Weaver’s superintendent told decedent or his drivers to pick up oil cans left at the pit, and may have told one of the drivers to fill his truck as full as possible or to drive as fast as he could, do not, in the light of the entire record, necessarily show control over the manner and method of performing the work. The commissioner could properly find from the superintendent’s evidence that no orders were given except to pick up the oil cans or that, if given, they were in the nature of suggestions rather than authoritative control. See McDonald v. Dodge, supra, 231 Iowa 325, 330, 1 N.W.2d 280, 283; Lind v. Eddy, 232 Iowa 1328, 1333, 6 N.W.2d 427, 429, 146 A. L. R. 695, 699.

Every contract for work reserves to the employer a degree of control, at least to enable him to see that it is done according to the contract. Such limited control does not necessarily indicate a master-servant relationship. Meredith Pub. Co. v. Iowa Employment Security Comm., supra, 232 Iowa 666, 673, 674, 6 N.W.2d 6, 10, 11, and citations; Page v. Koss Construction Co., 215 Iowa 1388, 1398, 245 N.W. 208.

The conclusion is justified that the contract between Weaver and decfedent was for certain work at a fixed price. It plainly appears decedent was in the independent trucking business; he had the right to hire and supervise his own drivers and in fact did so; he was obligated to furnish his own trucks, pay for gasoline, oil, repairs and insurance, and did so furnish them (this is important; Eestatement, Agency, section 220, comment g); decedent was not employed for any particular time; payment was not on a time basis but, at least in a sense, was by the job; although Weaver owned and operated at times some trucks of its own, it was not in the trucking business.

As we have indicated, it is clear the drivers of Weaver’s own trucks were its employees, not independent contractors. It is equally plain there are marked differences in the relationship between Weaver and its own drivers and that between Weaver, decedent and the other two drivers of decedent’s trucks. Decedent’s drivers were quite clearly his employees, not employees of Weaver. It is a proper and perhaps necessary inference that decedent was no more subject to Weaver’s control as to manner and method of doing the work than were the drivers hired by decedent. See Pace v. Appanoose County (Ladd, J.), 184 Iowa 498, 510, 168 N.W. 916.

There is no suggestion in the record or briefs that decedent’s drivers, while in the general employ of decedent, were temporary or special servants of Weaver under the so-called “borrowed-servant” doctrine recognized in Anderson v. Abramson, 234 Iowa 792, 13 N.W.2d 315, Miller v. Woolsey, 240 Iowa 450, 455, 35 N.W.2d 584, 587, 588, and Rozmajzl v. Northland Greyhound Lines, 242 Iowa 1135, 1144-1146, 49 N.W.2d 501, 507, 508.

Further, we have held the borrowed-servant or “loaned employee” doctrine does not apply in workmen’s compensation cases in view of statutory definitions in the act. Muscatine City Water Works v. Duge, 232 Iowa 1076, 1084, 1085, 7 N.W.2d 203, 207, 208; Hoover v. Independent School District, 220 Iowa 1364, 264 N.W. 611; Knudson v. Jackson, 191 Iowa 947, 183 N.W. 391. See also annotation 152 A. L. R. 816, 869, and earlier annotations therein cited.

Aside from the above, it is clear decedent’s drivers were not temporary servants of Weaver — certainly not as a matter of law. In the absence of evidence to the contrary there is an inference the servant remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by his general employer. Such a continuation is also indicated where the employee is using a machine or appliance of considerable value belonging to his general employer. There was no attempt here to show decedent transferred to Weaver the right of full control over the former’s drivers. Mere right of the temporary employer to direct a servant what work to do and when and where to do it is insufficient to show full control.

See in support of what we have just said Anderson v. Abramson, supra (Mulroney, J.), 234 Iowa 792, 794, 795, 13 N.W.2d 315, 316; Rozmajzl v. Northland Greyhound Lines, supra, 242 Iowa 1135, 1144-1146, 49 N.W.2d 501, 507, 508; War Emergency Co-op. Assn. v. Widenhouse (Judge Parker), 4 Cir., N. C., 169 F.2d 403, 406; Comments under section 227, Restatement, Agency.

Upon facts quite similar to those here we have held as a matter of law there was an independent contractor relationship. Lind v. Eddy, supra, 232 Iowa 1328, 6 N.W.2d 427, 146 A. L. R. 695; Burns v. Eno (Evans, J.), 213 Iowa 881, 240 N.W. 209 (closely in point on the facts); In re Estate of Amond, 203 Iowa 306, 210 N.W. 923; Svoboda v. Western Fuel Co., 195 Iowa 1137, 193 N.W. 406; Pace v. Appanoose County, supra, 184 Iowa 498, 507-518, 168 N.W. 916; Ash v. Century Lbr. Co. (Ladd, J.), 153 Iowa 523, 133 N.W. 888, 38 L. R. A., N. S., 973. See also Page v. Koss Constr. Co., supra, 215 Iowa 1388, 245 N.W. 208, and Arthur v. Marble Rock Consolidated School Dist., 209 Iowa 280, 228 N.W. 70, 66 A. L. R. 718, which, however, involve construction of written contracts.

We have also held evidence similar to that here furnished sufficient support for the commissioner’s finding the workman was an independent contractor. Norton v. Day Coal Co., supra, 192 Iowa 160, 180 N.W. 905. No precedent has come to our attention where, upon similar testimony, we have held the commissioner’s decision there was an independent contractor relationship lacked sufficient support.

We hold there is sufficient evidence here to warrant the commissioner’s decision that decedent was not an employee but an independent contractor. — Affirmed.

Bliss, Wennerstrum, Smith, Thompson, and Larson, JJ., concur. Mulroney, Oliver and IIays, JJ., dissent.