Buhler v. Maddison

• Decision Date: 13 February 1946
• Docket Number: 6822
• Citation: 109 Utah 245,166 P.2d 205
• Court: Utah Supreme Court
• Parties: BUHLER v. MADDISON

166 P.2d 205

109 Utah 245

BUHLER v. MADDISON

No. 6822

Supreme Court of Utah

February 13, 1946

Appeal from District Court, Third District, Salt Lake County; M. J Bronson, Judge.

Action by Joe Buhler against W. E. Maddison for injuries sustained by plaintiff as result of a dynamite blast while working for defendant on a mining claim in Nevada. From a judgment for plaintiff, the defendant appeals.

For opinion on rehearing see 109 Utah 267, 176 P. 2d 118.

Reversed and remanded.

A. H Hougaard and Herbert Van Dam, both of Salt Lake City, for appellant.

Delbert M. Draper and Clyde & Coray, all of Salt Lake City, for respondent.

Larson Chief Justice. McDonough and Turner, JJ., concur. Wade, Justice (concurring in result). Wolfe, Justice (concurring specially).

OPINION

Larson, Chief Justice.

An action for damages sustained as result of a dynamite blast while working on a mining claim in Nevada. This appeal presents for our determination the following matters: (1) The nature of the relationship between appellant and respondent. (2) The legal effect of the presumption of negligence and proximate cause under the Nevada statute. (3) Did the court err in taking the question of negligence from the jury and submitting only the question of damages? Or in other words, did defendant produce evidence enough as to freedom from negligence as to be entitled to go to the jury on the question as to whether he had rebutted the presumption of negligence and probable cause? (4) Did the accident arise out of and in the course of employment? (5) Was respondent guilty of such wilful negligence as to preclude recovery under the Nevada Compensation Act?

Plaintiff suffered personal injuries while working on the Lone Pine Lode mining claims near Elko, Nevada. Defendant and one Grant (both residents of Salt Lake City, Utah) were joint owners of these claims. They had failed to cover their employees with workmen's compensation insurance under either the Utah or the Nevada act. On July 2, 1944, plaintiff and his helper, the only two employees, placed a charge of dynamite in a drilled hole in the tunnel, to which was attached a primer -- a piece of fuse about 14 inches in length with a cap attached. He lighted the fuse and with his helper retired to a safe place where he waited five to eight minutes. Hearing no explosion he believed the fuse had stopped burning before reaching the cap. As he neared the place of the charge to make a new primer, the charge exploded resulting in the injuries forming the basis of this action. The cause was before this court on a former appeal reported in 105 Utah 39, 140 P. 2d 933, where there is a more complete statement of the facts. Hereafter we shall refer to the evidence only as it becomes of consequence in disposing of the questions presented on this appeal.

The action was based upon defendant's negligence. As pointed out in the opinion on the former appeal, plaintiff could not recover under the common law doctrine of negligence. In the trial, plaintiff without objections from defendant, had put in evidence certain provisions of the Nevada Workmen's Compensation Laws, although he had not pleaded them. We there held that plaintiff's verdict could not be upheld under the Utah Compensation Laws because the evidence did not justify a finding that defendant had three or more employees, as required by the Utah laws to bring the defendant within their provisions. Because the provisions of the Nevada Workmen's Compensation act defining employers were not pleaded or introduced in evidence, this court declined to pass on the question of whether respondent was an "employee", and appellant an "employer" under the meaning and terms of that act. It is conceded that neither appellant nor Grant complied with the provisions of the Nevada act by securing compensation, so that if they were within the term "employers" as defined therein, the penalties provided thereby against non-complying employers would be applicable against them. Upon remittitur, appellant filed an amended complaint wherein he set out the provisions of the Nevada Compensation act; Nevada Stats. 1913, Chap. 111, as amended by Nevada Stats. 1919, Chap. 176, Nevada Stats. 1925, Chap. 114, as follows:

"Section 7 1/2. The term 'employer,' as used in this act, shall be construed to mean: The state, and each county, city and county, city, school district and all public corporations and quasi-public corporations therein, and every person, firm, voluntary association, and private corporation, including any public-service corporation, which has any person in service under any appointment or contract of hire or apprenticeship, express or implied, oral or written, and the legal representative of any deceased employer.

"Sec. 7 1/2 (a). The term 'employee,' as used in this act, shall be construed to mean: Every person in the service of an employer, as defined in section 7 1/2, under any appointment or contract of hire or apprenticeship, expressed or implied, oral or written, including aliens, and also including minors, whether lawfully or unlawfully employed, * * *." (Italics added.)

The fact that appellant did not have three persons in his employ, one of our grounds for holding before that no recovery could be allowed under the Utah act, has no application under the Nevada statute. The question now is "did appellant have any employees"? If so, appellant is a non-complying employer under the Nevada Compensation Act, and the sections referring to such employers apply against him.

Both parties agree that the elements which go to show the existence of an employer-employee relationship, as they have been set out by this court in Weber County et al. v. Industrial Comm., 93 Utah 85, 71 P.2d 177, and Murray v. Wasatch Grading Co., 73 Utah 430, 274 P. 940, correctly state the law. The elements as there outlined, are as follows [93 Utah 85, 71 P. 2d 181]:

"(1) exercise of control over the details of the work,

"(2) payment of compensation,

"(3) power of appointment,

"(4) power of dismissal, and

"(5) for whose benefit the given work was done."

There is no substantial conflict in the evidence. We are asked to determine whether as a matter of law the evidence presented shows the employer-employee relationship. Without going into a detailed review of the evidence suffice it to say that such relationship is clearly shown by the evidence. We conclude therefore, that respondent was an employee of appellant. The appellant was therefore an "employer" as that term is defined in the Nevada Compensation act. Since he did not accept that act by securing insurance, the provisions relating to non-accepting employers may be applied against him herein.

These provisions are to the effect that the employer failing to comply with the provisions as to insurance may not escape liability for injury sustained by his employee which "arises out of and in the usual course of employment," because:

"(3) That the employee was guilty of contributory negligence, unless and except it shall appear that such negligence was willful and with intent to cause the injury, or the result of intoxication on the part of the injured party;

"(4) In actions by an employee against an employer for personal injuries sustained, arising out of and in the course of the employment where the employer has rejected the provisions of this act, it shall be presumed the injury to the employee was the first result, and growing out of the negligence of the employer, and that such negligence was the proximate cause of the injury; and in such case the burden of proof shall rest upon the employer to rebut the presumption of negligence." Para. 2680, Sec. 1(b), Nevada Comp. L. 1931-41.

The question first arises as to the effect and operation of the presumption of negligence and probable cause established by subparagraph (4). Appellant's position is that such presumption shifts only the burden of going forward, and that once the employer has produced evidence to rebut the presumption of negligence, the force of the presumption is spent, and it drops out of the picture.

That is the general rule in this state as to evidentiary presumptions. Ryan v. Union Pacific R. R., 46 Utah 530, 151 P. 71, 74; Clark v. Los Angeles & S. L. R. Co., 73 Utah 486, 504, 275 P. 582; State v. Steadman, 70 Utah 224, 259 P. 326; State v. Green, 78 Utah 580, 6 P. 2d 177; Chamberlain et al v. Larsen, 83 Utah 420, 29 P. 2d 355; In re Newell's Estate, 78 Utah 463, 5 P. 2d 230.

Respondent's argument is that the presumption shifts the burden of convincing the judge or jury on the issue of negligence and proximate cause -- that instead of such burden being upon plaintiff as it usually is, defendant has that burden; that upon proof of the employer-employee relationship; of the injury "arising out of and in the usual course of employment"; and that the employer has not accepted the act relative to insurance, plaintiff is entitled to a judgment as a matter of law, unless the defendant shall produce evidence which convinces the trier of the fact that defendant was not negligent; that in determining such question the presumption of negligence of defendant remains as an element to be weighed with the other evidence by the trier of the fact.

Interpreting this provision, the Nevada court said in Reeder v. Pincolini, 59 Nev. 396, 94 P. 2d 1097, 1099:

"* * * aside from the presumptions arising from the statute respondent was under no duty to produce evidence showing negligence on the part of appellants, unless the evidence produced in the case rebutted the presumptions. The trial court did not say that the evidence produced by respondent considered together with the presumptions arising from the statute, which are evidence in his favor, does not...