Commercial Casualty Ins. Co. v. Industrial Commission of Utah

• Decision Date: 13 April 1928
• Docket Number: 4647
• Citation: 266 P. 721,71 Utah 395
• Court: Utah Supreme Court
• Parties: COMMERCIAL CASUALTY INS. CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

266 P. 721

71 Utah 395

COMMERCIAL CASUALTY INS. CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4647

Supreme Court of Utah

April 13, 1928

Original proceeding in the Supreme Court to annul an award by the Industrial Commission to Florence H. Savage, claimant for the death of her husband, Herbert F. Savage, brought by the Ashton-Jenkins Insurance Company, defendant, and the Commercial Casualty Insurance Company, insurance carrier.

AFFIRMED.

Story Crow & Gardner, of Salt Lake City, for plaintiffs.

J. Robert Robinson, Asst. Atty. Gen., and George F. Wasson, of Salt Lake City, for defendants.

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

OPINION

CHERRY, J.

After a hearing and upon findings that Herbert F. Savage had on December 31, 1926, died as the result of an accident arising out of and in the course of his employment while regularly employed by the Ashton-Jenkins Insurance Company, an employer subject to the Workmen's Compensation Law (Comp. Laws 1917, §§ 3061-3165), the Industrial Commission made an award of compensation to Florence H. Savage, his widow, for the benefit of herself and two minor children, against the employer and its insurer, the Commercial Casualty Insurance Company. By this proceeding the employer and insurer seek the annulment of the award upon the grounds that the Industrial Commission exceeded its jurisdiction by finding without competent evidence (1) that the deceased was employed by the Ashton-Jenkins Insurance Company, and (2) that the deceased died as the result of an accident.

Upon the first proposition, it is the contention of the plaintiffs that the deceased, at the time of his death, stood in the relation of an independent contractor and not as an employee with the Ashton-Jenkins Insurance Company. This company was incorporated October 1, 1925, and since that time and until his death the deceased was engaged in soliciting insurance for it. On the part of the company there was evidence of an arrangement whereby the company advanced to the deceased the sum of $ 200 per month with the understanding that his compensation should depend and be fixed according to the amount of insurance business which he secured for the company. It was admitted that the commissions upon the business secured by the deceased did not equal the monthly payments made to him, but that notwithstanding the stated monthly payments were continued. For a short time accounts were kept of the commissions earned by deceased, but this was soon discontinued. The books of the company introduced in evidence showed that the deceased was listed as a selling agent along with other regular employees, and that his rate of compensation was $ 200 per month, which was regularly allowed or paid to him up to the time of his death. It appeared that deceased was indebted to the company on some previous transaction, and that deductions of from $ 50 to $ 100 to apply on that account were made from his monthly salary from month to month until and including September 1926, when the indebtedness was paid in full. For the months of October, November, and December, 1926, deceased was paid in full his regular salary of $ 200 per month. It further appeared that in previous reports made by the company to the Industrial Commission and to the insurer the deceased was listed and represented as an employee of the company. We think it a plain and necessary conclusion from the evidence that the deceased was an...