Intermountain Speedways, Inc. v. Industrial Commission

• Decision Date: 20 May 1942
• Docket Number: 6420
• Citation: 101 Utah 573,126 P.2d 22
• Court: Utah Supreme Court
• Parties: INTERMOUNTAIN SPEEDWAYS, Inc., et al. v. INDUSTRIAL COMMISSION et al

126 P.2d 22

101 Utah 573

INTERMOUNTAIN SPEEDWAYS, Inc., et al. v. INDUSTRIAL COMMISSION et al

No. 6420

Supreme Court of Utah

May 20, 1942

Original certiorari proceeding by the Intermountain Speedways, Inc., and the State Insurance Fund to review an award of compensation by the Industrial Commission to Henry Winters for the death of his son, Charles R. Winters, an employee of petitioner corporation.

Award set aside.

Frank Trottier, of Salt Lake City, for plaintiffs.

Grover A. Giles, Atty. Gen., and Stewart M. Hanson and Joseph R Haas, both of Salt Lake City, for defendants.

WOLFE Justice. McDONOUGH, J., and LEVERICH, District Judge concurring. MOFFAT, C. J. and LARSON, J., dissenting. PRATT J., not participating.

OPINION

WOLFE, Justice.

Certiorari to the Industrial Commission to review an award granting to Henry Winters compensation as the wholly dependent father of Charles R. Winters who was killed while driving an automobile in the midget races at the State Fair Grounds on June 22, 1941.

The Commission held the deceased was an employee of the Intermountain Speedways at the time of the accident and that his father was wholly dependent upon his deceased son. Both of these findings are impugned by the State Insurance Fund and are here for review.

The evidence in which there are few conflicts is as follows: Intermountain Speedways Inc., is a Utah Corporation. It conducted midget auto races at the State Fair Grounds every Sunday and Wednesday evening. It made a general offer to the public to drive midget autos in each race. The inducements to compete were $ 2.50 for each race and a share in a certain percentage of the gate receipts set aside as prize money, the share depending upon the order in which the entrant finished in the race.

The entrant paid the expenses of maintaining, servicing and operating his own car. If he drove a car belonging to another the arrangement between the owner and driver was of no concern to Speedways. It dealt with the entrant. An entrant owner could drive his own car or engage someone else to drive it. An entrant driver could drive his own car or obtain a car from another. Speedways paid the driver $ 2.50 for each race if he brought out his car and placed it in the race. He was expected to go once around the track. The $ 2.50 was termed appearance money--this whether he won or lost. He was not required to make an application. If he presented himself and a car which was qualified and he himself was in fit condition and qualified to race he received the guarantee of $ 2.50 per race provided he actually participated in the race. Any other compensation came by virtue of his placing himself among the winners. He was not subject to call as a driver; he was not compelled to practice. He engaged his own helpers--his own "pit crew" to service the car. If the driver was on hand at 8 o'clock when the races began and participated he could demand the guarantee of $ 2.50; otherwise not. Speedways had the absolute right to bar any driver from any race--to order him off the grounds for any reason it saw fit. It "supervised and controlled" the drivers insofar as it required them to obey certain regulations designed for the safety of contestants. It did not control the manner or method of driving except insofar as the instructions designed for safety regulate that driving. Each driver depended on his skill and dexterity in handling his car and the speed of which it was capable and which under the conditions of the race could be wrung out of it. Speedways employed its ticket sellers, gate tenders and employees who take care of the track. These employees were insured in the State Insurance Fund. Mr. Ralphs, Secretary-Treasurer of the Speedways, testified that the drivers were also insured in the State Insurance Fund. He could not tell how much insurance it was carrying on the drivers but thought that 23 or 24 were covered by insurance. He could not state the names of the drivers. The bookkeeper who had that information was not called.

Under the facts as above stated was the deceased an "employee" of Speedways as meant by the Workmen's Compensation Act? If he were not such, we need go no further to determine what his relationship really was.

Section 42-1-41, R. S. U. 1933, defines an "employee" as used in the act as any

"person * * * in the service of any 'employer' [as defined by and subject to the act] under any contract of hire, express or implied, oral or written * * * but not including any person whose employment is but casual," etc.

No point is made that Winter's employment was casual. The plaintiff takes the position that there was no employment. It will be noted that the definition of employment contained in the Workmen's Compensation Act is far different from that contained in the Unemployment Compensation Act. Laws 1936, Sp. Sess., c. 1, as amended by Laws 1939, c 52. In the latter act Section 19 (j) (1), (p), states that "'employment' * * * means service * * * performed for wages or under any contract of hire, written or oral, express or implied," and "wages" are defined as "all remuneration payable for personal services, including commissions and bonuses and the cash value of all remuneration payable in any medium other than cash." Thus, in the Unemployment Compensation Act one is in "employment" not only if he is under any contract of hire, express or implied as is the case in the Workmen's Compensation Act, but if he performs "personal services" for any remuneration. It is this latter provision which, as we stated in Globe Grain & Milling Co. v. Industrial Commission of Utah, 98 Utah 36, 91 P.2d 512; Creameries of America v. Industrial Commission of Utah, 98 Utah 571, 102 P.2d 300; Salt Lake Tribune Pub. Co. v. Industrial Commission of Utah, 99 Utah 259, 102 P.2d 307; National Tunnel & Mines Co. v. Industrial Commission of Utah, 99 Utah 39, 102 P.2d 508; Fuller Brush Co. v. Industrial Commission of Utah, 99 Utah 97, 104 P.2d 201, 129 A. L. R. 511, brought in under the scope of the Unemployment Compensation Act service relationships other than that of master and servant. On the other hand the definition of "employee" set out in the Workmen's Compensation Act is more narrowly restricted, mainly to the relationship of master and servant as known to common law. Stricker v. Industrial Commission of Utah, 55 Utah 603, 188 P. 849, 19 A. L. R. 1159; Angel v. Industrial Commission of Utah, 64 Utah 105, 228 P. 509; ...