I am not able to concur in the majority opinion. In my judgment, it presents a too restricted view of the operation of the Workmen's Compensation Act, and emphasizes the letter, in violation of the spirit thereof.
At the risk of repeating facts which are already stated in the majority opinion, I shall herein present the whole case, briefly, as I see it.
On November 15, 1923, the plaintiff was in the employ of the defendant, as the engineer in charge of its pumping plant. He had been engaged in such employment for the seven years preceding. On the morning of November 15th, he notified the chairman of the waterworks committee that he would terminate his services that evening. Pursuant to such notice, the committee immediately made arrangements with one Seibert, to take the job thus to be vacated by the plaintiff. The plaintiff operated the engine and pumps until 7:15 P.M., at which time he had the tanks filled. At that hour, he left the plant for home. *Page 1179 On the way home, he met Seibert, and advised him where he would find the key. Under plaintiff's contract of employment, he was furnished with a residence near the plant, and with a place to keep his cow and his portable garage. He had vacated the residence on November 15th, and had moved his family into another house down town. This latter was the residence to which he came, after leaving the plant at 7:15 P.M. There still remained upon his employer's premises his cow, his portable garage, and a car therein, and his tools, consisting of a sledge, a screwdriver, and three wrenches. He testified in this proceeding as follows:
"My injury occurred on the 16th day of November, 1923, and my employment with the city continued up until the 15th day of November, 1923. I quit out there the 15th day of November, 1923, about 7:15. I notified Mr. Whitehead in the forenoon of the 15th. He was a member of the waterworks committee of the city council. I had never notified anyone, prior to that time, that I would quit on the 15th. My pay was cut, and I wasn't notified until the day it was taking effect; so I never resigned or notified the city that I would resign my place until the forenoon of the 15th. And I then notified them that I would quit that evening."
Upon the foregoing testimony of the plaintiff himself the defendant predicates its contention that the relation of employer and employee between plaintiff and defendant was fully terminated on the evening of November 15th. The accident under consideration occurred on the morning of November 16th. The plaintiff returned to the plant at 8 o'clock that morning. He found Seibert there, and found him in trouble with the machinery. Seibert was unable to start one of the pumps. This pump had a defective valve, which required a peculiar manipulation in order to start it. This defect was explained by the plaintiff to Seibert. Seibert requested the assistance of the plaintiff to start the pump, and he went into the pump house and into the pit where the pumps were located, for the purpose of rendering such assistance. While engaged in such attempt, he was accidentally caught in some gearing, and lost his left arm as a result. The tools which plaintiff left at the pump house on the evening of November 15th were the necessary tools which he used in the operation of the plant. He testified that he left them *Page 1180 there on that evening, that they might be used in case of necessity. So far as appears, they were the only tools at the plant which were available for use at the time the accident occurred, on the morning of November 16th. The purpose of the plaintiff in going to the plant on the morning of November 16th was to milk his cow and to get his tools and to make preparations for removing the rest of his property.
The plaintiff pleaded, and the evidence tended to prove, that, at the time of plaintiff's employment and service, there prevailed a general custom or rule in that locality, as between engineers and their employers, that, upon the termination of the services of the employed engineer, it was his duty to impart reasonable instruction and extend reasonable aid to his successor in the operation of the plant. It is the contention of the plaintiff that he was fulfilling his obligation in obedience to this rule at the time of his injury, and that, for the purpose of such service and within its scope, he was still the employee of the defendant, within the meaning of the Compensation Act, notwithstanding that he had already quit the general service of the employer. Here is the pivot of the case. If the contract of employment had been in writing, and if such writing had imposed such obligation upon the employee, it would hardly be claimed but that the obligation to perform such duty rested upon him, notwithstanding the fact that he had terminated his general service. The contract, however, was oral. Even an oral agreement to such effect would have been equally binding upon him. But no such express agreement was made. Nor is there any evidence of any express agreement in the oral contract of employment. It appears to have been informal, and to rest upon legal implication. If there was a general custom, as contended by the plaintiff, and as found by the industrial commissioner, it would become a part of the contract of employment by legal implication. If the rule established by the prevailing custom became a part of the contract of employment, then it has an important bearing upon the question whether the relation of employer and employee was terminated on the evening of November 15th. The termination of the relation of employer and employee, within the meaning of the Compensation Act, is often, if not usually, a mixed question of law and fact. It is not necessarily accomplished by mere words, however direct and positive they may be. A discharge *Page 1181 may be peremptory, and a resignation may be immediate and abrupt; and yet, for certain purposes that are incidental to the termination of the employment, and for a reasonable time, the relation may continue. That is to say, there may be duties owed by one to the other, or privileges due to one or the other, which are incidental to the termination of the employment. The law allows a reasonable time for the performance of such duties or the exercise of such privileges. In the performance of such duties or the exercise of such privileges within such reasonable time, the relation of employer and employee is deemed to continue, within the meaning of the Compensation Act. For instance, it is quite universally held that a discharged employee has a right, after his discharge, to enter upon the premises of his employer for the purpose of removing his tools. While so engaged, within a reasonable time, he is deemed an employee, and not a trespasser nor a licensee, and is under the protection of the Compensation Act. Not only so, but he is bound by the limitations of the Compensation Act, and may not resort to a common-law remedy for injuries which he may suffer at such time. In 1 Honnold on Workmen's Compensation 373, the general rule is stated as follows:
"An employee is under the protection of the Compensation Act even after his discharge, providing he be injured upon the premises of the employer while remaining there for reasons connected with his former employment."
Many illustrations of the rule are to be found in the English cases. A case very much in point is Molloy v. South WalesAnthracite Colliery Co., 4 B.W.C.C. 65, C.A. (1911). The case at bar is quite controlled by our own recent case of Mitchell v.Consolidated Coal Co., 195 Iowa 415. In that case, a discharged employee returned, four days after his discharge, to get his tools and to perform his final duties incident to the termination of his employment. While engaged in such effort, he was injured, and we held that he was under the protection of the Compensation Act. By way of distinguishing the case at bar from the Mitchell case, the appellant contends that the plaintiff, Johnson, did not return to the plant on the morning of November 16th for thepurpose of aiding Seibert, but that he came there solely for his own purposes. It is true that he did not testify that he came there for the purpose of aiding Seibert. His *Page 1182 obligation to aid him, however, was no less on that account. Seibert had operated the machinery previously as an assistant to Johnson and as a substitute for him. Johnson might easily believe that Seibert would need no further assistance. Such a mental attitude would not be a repudiation of his obligation to render the service, if it proved necessary. He had a right to enter the pump house as an employee, in quest of his tools. But the accident did not happen to him in this quest. When he got to the pump house, he found Seibert in trouble, and apparently helpless to furnish the necessary amount of water to supply the town. Seibert, as witness for the defendant, described his own state of mind as follows:
"When Johnson came up and inquired how everything was, I swore."
It is clear that Johnson at this juncture found Seibert in need of instruction and help, even though he had not expected to find him in such state. It was his clear duty, under the implications of his contract of employment, to render such reasonable assistance as he could. In responding in good faith to that duty, he was to that extent an employee, and within the protection of the Compensation Act. Such was our holding in the Mitchell case. In that case, the duties which the employee was performing were not imposed by any express provisions of his contract, but were imposed by a general custom which prevailed in that locality, and which became a part of his contract by legal implication only. Such is the situation in the case at bar.
So far as the facts of this case are concerned, I have taken no account of conflicting evidence. The facts which I have assumed all have the support of evidence, and I would give effect to the finding of the commissioner accordingly. I would affirm. *Page 1183