Covey-Ballard Motor Co. v. Industrial Commission

• Decision Date: 19 July 1924
• Docket Number: 4144
• Citation: 64 Utah 1,227 P. 1028
• Court: Utah Supreme Court
• Parties: COVEY-BALLARD MOTOR CO et al. v. INDUSTRIAL COMMISSION et al

227 P. 1028

64 Utah 1

COVEY-BALLARD MOTOR CO et al. v. INDUSTRIAL COMMISSION et al

No. 4144

Supreme Court of Utah

July 19, 1924

Proceedings under Workmen's Compensation Act by William R. Johns, opposed by the Covey-Ballard Motor Company employer, and the State Insurance Fund, insurance carrier. An award of compensation was made, and insurance carrier applied for a writ of review.

AWARD ANNULLED.

Bagley Judd & Ray, of Salt Lake City, for plaintiffs.

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

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

OPINION

GIDEON, J.

On October 1, 1923, Wm. R. Johns filed written application with the Industrial Commission asking to be awarded compensation for an injury alleged to have been sustained by him while in the employ of the Covey-Ballard-Motor Company. A hearing was had and an award made by a divided Commission. In due time the insurance carrier applied to this court for a writ of review. The writ was issued, and the proceedings had before the Commission and the testimony taken are before us.

The petitioner here has filed a printed brief. No brief has been filed on behalf of the Commission.

The legal question for determination is, as stated in petitioner's brief, "Did the accident suffered by the applicant, arise out of or in the course of his employment."

There is no serious dispute as to the facts surrounding the accident. The applicant was a salesman for the Covey-Ballard Motor Company. He worked and was paid on a commission basis. It was part of his duties to report at the office each morning at 8:15 o'clock. At this time prospective purchasers of cars were reported. Some discussion and suggestions respecting the method of making sales were had also. After this time the salesmen employed on a commission basis controlled their own activities. They called upon prospective purchasers or sought new ones, just as they found it to be to their interest. It also appears that during the month in which the accident occurred the salesmen were requested to report at the office during the evening of each day. During that month, as expressed by some of the witnesses, there was a special drive to try and increase sales, owing to the fact that the motor company had bought heavily of cars for that season. On the evening of the accident applicant was at the office of the company. There is some evidence that he was engaged in showing or demonstrating cars to prospective purchasers that he had at that time. About 9:45 p. m. Mr. Johns took his own car and started to drive to his home in Murray, a village approximately seven miles south of Salt Lake City. On the way home he ran into a telephone pole, and received the injuries for which compensation is sought.

It is the contention of the motor company and the insurance carrier that there is no testimony to support the claim that the injury arose out of or in the course of the employment. We are of opinion that the contention must be sustained.

There is testimony tending to show that it was the duty of a salesman, such as the claimant, to be at all times on the lookout for prospective purchasers, and that it was not only his duty but his privilege to make sales and to interest prospective purchasers at any and all times and wherever he happened to find a prospective buyer. The majority of the Commission...