Bamberger Electric R. Co. v. Industrial Commission of Utah

• Decision Date: 24 December 1921
• Docket Number: 3720
• Court: Utah Supreme Court
• Parties: BAMBERGER ELECTRIC R. CO. v. INDUSTRIAL COMMISSION OF UTAH

203 P. 345

59 Utah 257

BAMBERGER ELECTRIC R. CO. v. INDUSTRIAL COMMISSION OF UTAH

No. 3720

Supreme Court of Utah

December 24, 1921

Proceedings under the Workmen's Compensation Law (Comp Laws, 1917, §§ 3061-3165) by Elise Berg, for compensation for the death of her son, Walter Berg, opposed by the Bamberger Electric Railroad Company and the Utah Power & Light Company, employers. Award by Industrial Commission of Utah for claimant against both employers, and first-named employer petitions for a writ of review.

Commission instructed to VACATE AWARD as to first-named employer.

De Vine, Howell, Stine & Gwilliam, of Ogden, for plaintiff.

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

WEBER, J. CORFMAN, C. J., and GIDEON, THURMAN, and FRICK, JJ., concur.

OPINION

WEBER, J.

Walter Berg was killed by accident at Ogden. Utah, on June 2, 1921. His mother, Mrs. Elise Berg, applied to the Industrial Commission for compensation from the Bamberger Electric Railroad Company, hereinafter referred to as Railroad Company, and the Utah Power & Light Company, hereinafter called Power Company, claiming that at the time of his death her son was in the employ of both companies, and that both companies were liable for compensation. The commission made an award to be paid by both companies. The Railroad Company obtained a rehearing, upon which the previous award was confirmed. In accordance with plaintiff's petition for a writ of review, the record is now in this court.

The Railroad Company contends that the Commission was without any jurisdiction or authority to make an award against it, for the reason that Berg was not in the service of that company in doing the particular work in which he was engaged at the time of his death, and that therefore the relation of employer and employe did not exist between him and the plaintiff at that time.

At the hearing before the Commission the first proceeding had was the entrance by the parties concerned into a stipulation to this effect: On June 2, 1921, Walter Berg, of Ogden, Utah, was fatally injured by reason of an accident arising out of or in the course of his employment; that at the time he was killed he was engaged in his duties in performance of work for the Utah Power & Light Company, and that he met with the accident on the side of the station owned and operated exclusively by the Utah Power & Light Company. It was further stipulated that deceased was 31 years of age, single, and a citizen of the United States; that there is unpaid a funeral expense of $ 420.25 due George W. Larkin & Sons, and that the Utah Power & Light Company is a self-insurer, paying compensation direct to its injured employes and their dependents.

With proof of the earnings of deceased from both companies and the dependency of the mother supplementing the agreed facts, the case would seem to have been complete for awarding compensation to the mother to be paid by the Power Company, basing such award upon his aggregate earnings from both companies. However, witnesses were produced whose testimony established substantially the following facts. Plaintiff operates an electric railroad between Salt Lake City and Ogden, Utah. The electric substation at Ogden in which Berg was killed is a building divided into two parts, with an opening in the center. On one side of the building are the electric transformers of the Railroad Company, and on the other side are the Power Company's are rectifiers and distributing power lines for supplying light to Ogden city. Berg's duty to the railroad company was to operate its transformers at its substation, and he also attended to the Power Company's machinery on its side of the building. The transformers and machinery of the Railroad Company were not operated between 1:35 and 5:30 a. m., as no trains were being run during that time. The record kept by Berg indicated that the machines of the Railroad Company were shut down at 1:30 a. m., and they were not started at 5:30 a. m., showing that Berg, who was the only one to start the machinery, had been killed before 5:30 a. m. His dead body was found between 7 and 8 a. m., and apparently Berg had been dead two or three hours. Burns on his body indicated that he had been killed by electricity, and other evidence pointed unmistakably to the fact that he had come in contact with an electric current while working for the Power Company, and on its side of the building. The work he was doing at that time for the Power Company had no connection with the business of the Railroad Company in any manner. Berg worked for both companies, and each paid him for four hours, one-half of his time, each day. His pay was according to the schedule of the company paying him.

The Commission found that--

"The decedent on the date of his death was paid the sum of $ 61.25 per month by the Utah Power & Light Company, and the sum of $ 54.50, plus 10 per cent. bonus, or a total of $ 59.95 per month, by the Bamberger Electric Railroad Company, making his aggregate salary received per month from both companies $ 121.20, working seven days...