Bingham City Corporation v. Industrial Commission of Utah

• Decision Date: 20 August 1925
• Docket Number: 4250
• Citation: Bingham City Corporation v. Industrial Commission of Utah, 66 Utah 390, 243 P. 113 (Utah 1925)
• Court: Utah Supreme Court
• Parties: BINGHAM CITY CORPORATION et al. v. INDUSTRIAL COMMISSION OF UTAH et al

243 P. 113

66 Utah 390

BINGHAM CITY CORPORATION et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4250

Supreme Court of Utah

August 20, 1925

Rehearing Denied February 10, 1926.

Original proceeding by Bingham City Corporation and others against the Industrial Commission of Utah and another, to review an order of the Industrial Commission.

ANNULLED.

Ray &amp Rawlins and J. E. Darmer, all of Salt Lake City, for plaintiffs.

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

CHERRY, J. GIDEON, C. J., and THURMAN, FRICK, and STRAUP, JJ., concur.

OPINION

CHERRY, J.

This is a review of proceedings had before the Industrial Commission under the Workmen's Compensation Act (Comp. Laws 1917, §§ 3061-3165).

Harold A. Anderson, a volunteer fireman in Bingham City, while fighting a fire on August 17, 1924, sustained injuries from which he thereafter died. Caroline Huebner, his grandmother, and Andrew Anderson and Anna Anderson, his parents, claiming to be dependents, made application to the Industrial Commission for compensation to be paid by Bingham City. After a hearing, the Industrial Commission found:

"That on August 17, 1924, Harold A. Anderson was a volunteer fireman but followed other lines of regular employment; that he was on the rolls of a regularly constituted fire department, whose members were under the jurisdiction of Bingham City corporation; that on said date Harold A. Anderson, while engaged as a volunteer fireman and in the performance of his duties as such, in fighting a fire in Bingham Canyon, was killed; that on said date he was employed by the Utah Copper Company, and was paid a wage amounting to $ 4.70 per day, working 7 days per week."

The commission further found as a fact that the applicants above named were not dependent upon the decedent for their maintenance and support. From the facts found, the commission concluded that the deceased was killed by reason of an accident arising out of his employment as a volunteer fireman by Bingham City, an employer subject to the state Industrial Act that the claim of applicants be denied, and that the city be required to pay the burial expenses of deceased and to pay $ 998.40 into the state treasury as provided by Comp. Laws Utah 1917, § 3140, as amended by chapter 67, Laws of Utah 1921, in cases where there are no dependents. An order was made accordingly.

Both Bingham City and the applicants have brought the matter here by writ of review.

Bingham City contends that no award should have been made at all, because there was no relation of employer and employe between it and the deceased. The applicants object to the finding against them on the question of their dependency upon deceased as being against the evidence. Our conclusion upon the first question makes it unnecessary to consider the second.

Liability for workmen's compensation is statutory, and it is essential to a recovery that the person for whose injury or death an award of compensation is made be within the fair terms of the statute which creates the right. The statute relied upon herein as sustaining the award made is that part of Comp. Laws Utah 1917, § 3111, as amended by chapter 63, Laws Utah 1919, which reads:

"3111. The terms 'employe,' 'workman' and 'operative,' as used in this title, shall be construed to mean: (1) Every person in the service of the state, and of every county, city, town or school district, including regular members of lawfully constituted police and fire departments of cities and towns, under any appointment or contract of hire, express or implied, oral or written, except any elective official of the state, or of any county, city, town or school...