Angel v. Industrial Commission of Utah

• Decision Date: 15 July 1924
• Docket Number: 4084
• Citation: 64 Utah 105,228 P. 509
• Court: Utah Supreme Court
• Parties: ANGEL et al. v. INDUSTRIAL COMMISSION OF UTAH et al

228 P. 509

64 Utah 105

ANGEL et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4084

Supreme Court of Utah

July 15, 1924

Proceeding for compensation under the Industrial Act by Louis Skoubye, claimant, opposed by J. H. Angel, employer, and the Standard Accident Insurance Company, insurance carrier. The Industrial Commission awarded compensation, and the employer and the insurance carrier bring certiorari.

AWARD VACATED AND SET ASIDE.

A. E Moreton, and Ray Van Cott, both of Salt Lake City, for plaintiffs.

Harvey H. Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty Gen., for defendants.

THURMAN J. WEBER, C. J., and FRICK, J., concur. GIDEON, J., CHERRY, J., dissenting.

OPINION

THURMAN, J.

This is a proceeding in certiorari to review an award by the defendant Commission, allowing compensation to the defendant Skoubye for an injury resulting from an accident while working upon a building belonging to the plaintiff Angel. Skoubye claims that he was an employe of Angel and that the accident occurred in the course of his employment; while Angel contends that Skoubye was an independent contractor, and not within the provisions of the Industrial Act (Comp. Laws 1917, §§ 3061-3165).

The Commission, after hearing the evidence, found the following facts:

"(1) That several days prior to March 26, 1923, Mr. J. H. Angel, contractor, telephoned Mr. Louis Skoubye, the applicant herein named, and advised him that he would like to give him employment pouring concrete, and asked Mr. Skoubye what he would charge per foot for pouring said concrete. Mr. Skoubye replied that he would pour the concrete for five cents per cubic foot. In pouring the concrete a machine was used that was owned by Louis Skoubye. The sand, gravel, cement, and forms were furnished by the employer, J. H. Angel. The men selected by Mr. Skoubye to assist him in doing concrete work for Mr. Angel were paid by Mr. Angel, and the sums paid to the said men were deducted from the price of five cents per cubic foot which the employer agreed to pay Mr. Skoubye. Mr. Skoubye was subject to the supervision and direction of the employer, Mr. Angel. That Mr. Angel's foreman on several occasions directed the men assisting Mr. Skoubye in the pouring of concrete as to the method of tamping the concrete. Mr. Skoubye at no time consulted the plans and specifications of the building being constructed by the employer at 446 East Third South Street, Salt Lake City, Utah, and was merely employed by Mr. Angel to do the concrete work on this particular building at five cents per cubic foot. Mr. Skoubye had nothing to do with making or erecting the forms used for the concrete or with erecting or changing the runway used by the employers for wheeling concrete to the said forms, but merely followed the instructions of Mr. Angel and his foreman as to how he should proceed and where he was to pour.

"(2) On the 26th day of March, 1923, Louis Skoubye injured his right hand while employed by J. H. Angel, whose regular business was that of general contractor; that as a result of said injury he suffered amputation of his right arm between the elbow and wrist; that as a result of said injury the applicant was temporarily totally disabled up to April 30, 1923; that on said date he secured employment at the stockyards and was paid a wage of $ 10 a day; that as a result of said injury the applicant paid to the Holy Cross Hospital the sum of $ 41; that the applicant was attended by Dr. C. F. Pinkerton, who, up to the present time, has rendered no bill for services rendered. Mr. Skoubye had worked only 30 minutes for Mr. Angel when he was injured. It was testified that Skoubye would have earned, in all, probably $ 8 per day, had he not been injured.

"(3) That on March 26, 1923, Mr. J. H. Angel had in his employ three or more workmen and had procured workmen's compensation with the Standard Accident Insurance Company."

From the foregoing findings the Commission concluded that Skoubye was an employe of Angel, within the Industrial Act, and awarded him compensation at the rate of $ 16 per week for a period of 100 weeks, and also reimbursement for money expended for medical and hospital service.

Plaintiffs vigorously challenge the validity of the first and second findings and the conclusion resulting therefrom. They insist that the relation of Skoubye to Angel was that of independent contractor and not of an employe, and that therefore the Commission exceeded its jurisdiction in making the award.

Whether or not Skoubye was an employe of Angel, within the meaning of the Industrial Act, is a jurisdictional question calling for a judicial determination. Ind. Comm. v. Evans, 52 Utah 394, 174 P. 825; Miller & Lux v. Ind. Acc. Comm. of Cal., 179 Cal. 764, 178 P. 960, 7 A. L. R. 1291. It becomes our duty, therefore, to determine the facts from a preponderance of the evidence and apply thereto the law of the case.

It would be assuming a useless burden to enter upon a detailed statement of the evidence. After a careful review of the same, we find the material facts to be that the plaintiff Angel for the last-10 or 12 years has been the owner of the land upon which the building was being constructed; that during all of said time he contemplated building an apartment house on the land for rental purposes. During the same period of time Angel had been a building contractor himself and, as to the building in question, did not employ a contractor for the entire work, but retained general supervision in himself. A few days prior to the 26th day of March, 1923, Angel, who was acquainted with Skoubye, who was skilled in cement work, called Skoubye by phone and asked him if he would like to pour cement for the building, and Skoubye said he would. Angel gave him the approximate size of the building and inquired as to the price he would charge. Skoubye told him he would charge five cents per cubic foot and was to furnish his own tools and employ his own assistants. It was then arranged that Skoubye would come and examine the premises. He did so very soon thereafter and found that the basement had been excavated and the trench for the footings nearly completed. He met Angel on the ground, and after viewing the premises and ascertaining the character of the work the agreement made over the phone was confirmed. Skoubye testified that in the conversation over the phone he told Angel he (Angel) should take care of the compensation insurance, and that Angel agreed to do it. Skoubye's testimony does not show whether the compensation insurance included himself or was solely for the men he employed. Angel denies that anything was said about compensation insurance, but says that, under a contract with Skoubye the year before, he had paid for compensation for Skoubye's employes, but not for Skoubye himself. The contract was quite informal, no doubt due to the fact that Skoubye had been engaged by Angel during the year previous for the same kind of work, and under circumstances somewhat similar. Skoubye, in pursuance of the contract, moved his tools upon the ground. They consisted of wheelbarrows, shovels, and a machine operated by gasoline engine. The machine, in the evidence, is called a "mixer." There may have been other tools of minor importance, but whatever they were, they were all furnished by Skoubye under and in pursuance of the contract.

On the 26th day of March, 1923, Skoubye, with three other men employed by himself, entered upon the work. One of the men Mr. Leatham, was his son-in-law. Skoubye was to pay one of the men $ 5 per day, and the other two $ 3.50 each. Angel, under the contract, was to furnish the material for the cement and construct the necessary forms and whatever was...