Frandsen v. Industrial Commission of Utah

• Decision Date: 10 February 1923
• Docket Number: 3910
• Court: Utah Supreme Court
• Parties: FRANDSEN v. INDUSTRIAL COMMISSION OF UTAH

213 P. 197

61 Utah 354

FRANDSEN v. INDUSTRIAL COMMISSION OF UTAH

No. 3910

Supreme Court of Utah

February 10, 1923

Rehearing denied March 5, 1923.

Proceedings by Bryan D. Roberts for compensation under the Workmen's Compensation Act for injuries sustained while in the employ of Lars Frandsen. On writ of review by the employer to annul an order of the Industrial Commission awarding compensation.

AWARD AFFIRMED.

George Christensen, of Price, for plaintiff.

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

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

OPINION

CHERRY, J.

The plaintiff, by writ of review herein, seeks the annulment of an order of the defendant, under the Workmen's Compensation Act (Comp. Laws 1917, §§ 3061-3165), awarding compensation to Bryan D. Roberts for injuries sustained.

The facts of legal import are, in substance, as follows:

In May, 1922, Lars Frandsen, the plaintiff, was conducting a brickyard or kiln in or near Price, Utah. He sold a quantity of brick to one Campbell for use at Helper, Utah. Frandsen originally was to deliver the brick f. o. b. cars at Price to be transported by rail to Helper: The railroad switch being out of repair, it was arranged between Frandsen and Campbell to have a portion of the brick hauled in wagons; that Frandsen was to load them on the wagons, and Campbell was to pay for the hauling. Frandsen thereupon, and without disclosing the relationship of Campbell to the matter, employed Bryan D. Roberts and two others to haul brick from Price to Helper at the agreed price of $ 5.25 per thousand. About 2 o'clock p. m. on May 29, 1922, the men came to Frandsen's premises with their teams and wagons. Frandsen was present, in charge, and directed the loading. Before loading the brick it was necessary to fix racks and end boards on the wagons to hold the brick. It was agreed by the three employees that Roberts should fix up the racks while the other two were loading, and that they would help Roberts to load when he was ready. While the other two men were loading brick, Roberts fixed one wagon, not his own, and while fixing his own by "driving a nail on the end board," the nail glanced out and struck him in the left eye whereby the sight was destroyed. Roberts, not thinking his injury serious at the time, continued his work and assisted in loading his own wagon, when his eye hurt him so badly that at Frandsen's direction he quit.

Pursuant to an agreement between themselves, Campbell, the purchaser, paid to Frandsen the cost of hauling, which was paid to the employees by Frandsen. It was not claimed that Roberts had any notice or knowledge of Campbell's relation to the transaction.

The defendant Industrial Commission awarded compensation to Roberts upon finding that he was regularly employed at the time by the plaintiff and was injured by reason of an accident arising out of or in the course of his employment.

The plaintiff contends that there is no evidence to support the finding that Roberts was employed by him, but that the evidence shows that Campbell, the purchaser of the brick, was the employer and that the plaintiff merely acted for Campbell in the matter as an accommodation.

It is not claimed that Roberts was an independent contractor.

The evidence is clear that Frandsen was conducting the brickyard; that he employed the workmen to haul the brick without making any mention of Campbell whatever; that at the time of the accident he was personally present directing the work; that he paid the workmen.

It cannot be said that his undisclosed agency for Campbell could affect the legal relationship between him and the employees. 31 Cyc. 1555; Morris & Co. v. Malone, 200 Ill. 132, 65 N.E. 704, 93 Am. St. Rep. 180; Scott v. O. A. Hankinson & Co., 205 Mich. 353, 171 N.W. 489; 1 Honnold, Work. Comp. 119; Cyc. Work. Comp. Acts, 46, note 29 (a).

The finding of the Industrial Commission that the plaintiff was the employer of Roberts at the time of the injury must be sustained.

The difficult question is whether the Commission was justified in finding that the injury arose out of or in the course of the employment of Roberts.

The plaintiff contends that Roberts did not enter upon the employment of hauling brick at all; that before he could enter upon that employment under his engagement it would be necessary for him to have his team and wagon completely equipped upon which to load the brick; that Roberts was engaged in so preparing his wagon when the accident occurred and that it therefore did not arise out of or in the course of his employment. This argument is somewhat disputed by the fact, established by the evidence, that the three employees...