Gogoff v. Industrial Commission of Utah

• Decision Date: 27 February 1931
• Docket Number: 5051
• Citation: 77 Utah 355,296 P. 229
• Court: Utah Supreme Court
• Parties: GOGOFF v. INDUSTRIAL COMMISSION OF UTAH et al

296 P. 229

77 Utah 355

GOGOFF v. INDUSTRIAL COMMISSION OF UTAH et al

No. 5051

Supreme Court of Utah

February 27, 1931

Proceeding under the Workmen's Compensation Act by Alex Gogoff, employee, opposed by Murray E. Burns, employer, and the Southern Pacific Company. To review an order of the Industrial Commission denying compensation, the employee brings certiorari.

AFFIRMED.

Willard Hanson and A. H. Hougaard, both of Salt Lake City, and L Leland Larson, of Manti, for plaintiff.

Geo. P Parker, Attorney General, and Bagley, Judd & Ray, of Salt Lake City, for defendants.

FOLLAND, J. STRAUP, ELIAS HANSEN, and EPHRAIM HANSON, JJ., concur. CHERRY, C. J., dissents.

OPINION

FOLLAND, J.

Certiorari to review an order of the Industrial Commission of Utah denying compensation to plaintiff for injuries resulting from an accident while working at the quarry of the defendant Southern Pacific Company at Lakeside, Utah, The findings and decision of the commission were as follows:

"Alex Gogoff, the applicant herein, on the 26th day of March, 1929, was employed by Murray E. Burns. Murray E. Burns had a contract with the Southern Pacific Company to drill coyote holes at Lakeside and Lucin, Utah. Murray E. Burns was an independent contractor, as defined in section 3110 of the State Industrial Act. He was not subject to the rule or control of the employer and was engaged only in the performance of a definite job, and was subordinate to the employer only in effecting a result in accordance with the employers' design. Murray E. Burns, on the 26th day of March, 1929, on the date that Alex Gogoff was injured, had in his employ only two workmen and was not subject to the Workmen's Compensation Law.

"The applicant has not sustained his burden of proving that on March 26th, 1929, he was employed by the Southern Pacific Company.

"Wherefore, it is ordered, that applicant's claim for compensation be and the same hereby is denied."

There is no dispute as to the happening of the accident, or the nature or extent of the injuries, or, if Burns was an independent contractor, that he had only two men working for him, Gogoff and one other, and that he did not have these men covered by compensation insurance. A contract in writing was entered into between the company and Burns. It is plaintiff's contention that, under the provisions of this contract, such material supervision and control over the contractor was retained as to render the contractor entirely dependent with respect to the work to be performed, and that Burns was a mere agent of the company in the employing of plaintiff, and that the relation of master and servant existed between plaintiff and the company which entitled him to compensation for the injuries sustained. The precise question for decision is whether or not plaintiff was an employee of the company, and the answer turns on whether or not Burns was an independent contractor.

The Southern Pacific Company operates a quarry at Lakeside, Utah, from which it obtains rock which it uses for ballast for its roadway across the Great Salt Lake. Coyote holes are tunnels of fifty feet or more in length, approximately seventy feet apart, driven into the face of the mountain. Tees are tunnels driven at right angles to the first tunnels, at about the end thereof. They are used for the purpose of blasting down large quantities of rock from the mountain side. It has been customary for the company to let contracts for the drilling of coyote holes, believing that it could get the work done cheaper and quicker than it could with its own employees. One person, other than Burns, was operating at Lakeside under a similar contract during the spring and summer of 1929. The relationship between Burns and the company was established by the contract. No other or different employment was shown to exist. While he had formerly worked for the company as civil engineer and foreman, he had been employed elsewhere for about a year previous to the making of the contract in question. Burns sought and obtained the contract, and continued to work under it until the end of the summer of 1929. After the accident to Gogoff, he employed more than two men and kept them insured in the state insurance fund. After negotiating for the contract and before it was signed, Burns wired to Charles Kupoff in Montana, requesting him to come to Ogden, and bring another workman with him to go on this work. Kupoff brought Gogoff with him, and arrived in Ogden March 23. Both men were experienced in drilling and blasting. Burns employed them, and agreed to pay them 75 cents an hour. The contract with the company was signed by Burns on Sunday, March 24, but it was dated March 25, 1929. Burns and the two men went to Lakeside on March 25, where they worked that day and part of the next, when the accident happened, caused by a "missed hole." Burns, Gogoff, and Kupoff were all injured and were taken to the Dee Hospital at Ogden.

The contract, which is a printed form with typewritten additions provided that the contractor shall "perform the work of drilling coyote holes, tees and pockets in locations to be designated by Railroad at Lakeside and Lucin, Box Elder County, and Palisade, Eureka County, Nevada." The work was to be commenced immediately and continue until October 31, 1929, but the contract could be terminated by either party by giving three days written notice to the other party. The contractor agreed to furnish all labor so as to satisfactorily perform the work. The coyote holes were to be not over 3 feet in height by 2 feet 6 inches in width, nor less than 2 feet 6 inches in height by 2 feet in width; payment to be made by the railroad at the rate of $ 3 per lineal foot where main drift does not exceed 50 feet and tees and crosscuts do not exceed 30 feet each way, and for each additional 10 feet the price to increase 50 cents per lineal foot, and for drilling pockets the rate was 75 cents per cubic foot; payment to be made twice a month, based on railroad engineer's measurement...