Ludlow v. Industrial Commission

• Decision Date: 03 April 1925
• Docket Number: 4212
• Citation: 65 Utah 168,235 P. 884
• Court: Utah Supreme Court
• Parties: LUDLOW v. INDUSTRIAL COMMISSION et al

235 P. 884

65 Utah 168

LUDLOW v. INDUSTRIAL COMMISSION et al

No. 4212

Supreme Court of Utah

April 3, 1925

Proceeding under the Industrial Act by Wilma H. Ludlow claimant, for death of her husband Daniel Ludlow, opposed by the Board of Education of the Nebo School District, and the State Insurance Fund. To review an order of the Industrial Commission, denying compensation, claimant prosecutes a writ of review.

AWARD AFFIRMED.

Booth &amp Brockbank, of Provo, for plaintiff.

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

THURMAN, J. FRICK, J., concurs. CHERRY, J., concurring in the judgment. GIDEON, C. J., concurring in the order. STRAUP, J., concurring in the result.

OPINION

THURMAN, J.

On January 31, 1924, John W. Clark and Daniel Ludlow, while operating an automobile truck in the Nebo school district of Utah county, were both killed in a railroad collision while attempting to cross the track of the Union Pacific Railroad.

Clark, it appears, had entered into a contract with the board of education of said school district for the transportation of certain school children of said district to and from school, and Ludlow had been hired by Clark as the driver of one of his trucks. The dependents of both Clark and Ludlow made application to the Industrial Commission of Utah for compensation under the Industrial Act (Comp. Laws 1917, §§ 3061-3165. By stipulation of the parties the cases were consolidated, and the evidence taken in the Clark Case was also applied and used in the Ludlow Case. The Commission denied compensation in both cases, on the ground that Clark was an independent contractor and that Ludlow was employed by him and not by the school district. A rehearing was applied for in the Ludlow Case and denied. The case is before us on a writ of review.

There are but two questions presented for determination: (1) Was Clark an independent contractor or was he an employe of the school district? (2) If he was an employe of the school district, did the accident which resulted in his death occur in the course of his employment? If it be determined that Clark was an independent contractor, it will not be necessary to determine the other question; for, in such case, under the undisputed evidence, it clearly appears that Ludlow was an employe of Clark, and not of the school district, as alleged in the petition for review.

The first question therefore to be determined is, Was Clark an independent contractor of the school district? If so, the case is not within the Industrial Act, and the Commission's award should be affirmed.

It was stipulated by the parties at the hearing that the school district had procured insurance with the state insurance fund; that John W. Clark, the deceased had a contract with the board of education of the Nebo school district under which he was to be paid $ 3,500 a year for transporting school children to and from school, said sum to be paid in nine payments; that said deceased left a widow and dependent minor children living with and dependent upon him at the time of his death. The contract between Clark and the board of education of the district was not in writing signed by the parties, but certain entries were made in the minutes kept by the board, from which it appears that a valid contract was entered into between the parties. As the principal question turns upon the nature and terms of the contract, we here quote the minutes in full:

"Board of Education met in the office in regular session August 10, 1923, 7:30 p. m. President T. F. Tolhurst in charge. Minutes read and approved. Roll call showing all members present. Jack Clark met with the board for transportation. His offer was $ 3,700 per year for a three-year contract, provided the board pay federal tax. He stated larger truck was necessary and asked that the board advance $ 1,000 and apply $ 100 monthly on the amount. Also asked the board to furnish material for two garages; that Lake Shore truck be routed through Benjamin and trucks start from Benjamin, Lake Shore, and Palmyra schoolhouses. The clerk was instructed to notify Jack Clark that board was willing to enter into contract with him for transporting pupils from Benjamin, Lake Shore, and Palmyra on the following conditions.

"'(1) That three starting points as follows be agreed upon: Benjamin schoolhouse, Lake Shore schoolhouse, Palmyra schoolhouse;

"'(2) That the board furnish material for garage at Lake Shore and Palmyra, Mr. Clark to do the building free;

"'(3) That Lake Shore truck be routed through Benjamin;

"'(4) That the board advance $ 1,000 August 15th, to make partial payment on new truck, secured by chattel mortgage for one year, to be paid in nine months payment;

"'(5) That the board pay $ 3,500 for said transportation in nine payments, and that the contract be for two years with $ 1,000 advance next September on truck, secured with chattel mortgage.'"

On August 29, 1923, the following entries appear in the minutes of the board:

"Board of education of Nebo school district met in regular session in the school office August 29th, at 7:30 p. m., 1923. President T. F. Tolhurst in charge. Roll call showing four members present. J. A. Westing excused. Jack Clark reported he would accept salary and contract as offered for transporting from Lake Shore, Benjamin and Palmyra."

No other or different contract than the one above quoted is disclosed by the record. It is true that members of the board of education of said school district, called as witnesses for the petitioner, in answer to questions calling for legal conclusions, were permitted to testify, in effect, that such and such things were in accordance with the contract, and that the contract authorized this, that, and the other. In other words, they were permitted to place their construction upon the contract and attempt by their testimony to decide the very question which was the duty of the Commission alone to determine from the facts laid before them. Neither time nor space would be profitably occupied in detailing the testimony of the witnesses in order to elucidate the character of evidence received by the Commission. We assume a few instances will be amply sufficient for that purpose. When Mr. Tolhurst, the president of the board, was on the stand as a witness for petitioner, after stating he had heard read the minutes of the board relating to Mr. Clark's employment, he was asked: "Does the contract contain all the details pertaining to Mr. Clark's employment?" He answered: "Well, except like a teacher or any other employe, he is subject to the orders of the board." Again, the same witness was asked: "Was his employment by the board different to the employment of any other of the employes?" This was objected to by counsel for the insurance fund, as the question called for a legal conclusion. The objection was overruled, and the witness answered: "Well, personally, and I believe the board generally understood them to be under the direction of the superintendent and members of the board similar to any other teacher or superintendent of the board." Again, the witness was asked if Mr. Clark had independent charge. Against objection the question was allowed, and the witness answered, "Certainly not." Again, the same witness was asked by counsel for petitioner: "What were the provisions of the contract?" He answered: "To follow the contract and be under the supervision of the superintendent the same as any other teacher or employe of the district."

A. C. Peterson, superintendent of schools, was examined. Counsel for petitioner asked the following question:

"Was your authority over Mr. Clark, as given you by the board, the same as other employes in the district?" He answered: "So far as I understand, he was under the supervision of the board, outside of the designated time he was out of employment, and then we had nothing to do with him, except when we called him on special occasions.

"Q. Was it your right to call him on special occasions at any time in regard to work? A. On special occasions and as far as transportation. For instance, we would have a basketball game, and the principals would telephone down here and ask us to tell him to hold the truck until after the game."

The foregoing serves to illustrate the latitude allowed in examining the witnesses and the character of testimony elicited.

Certain rules published by the board and handed to Mr. Clark after the contract was entered into are relied on by the petitioner. They are of sufficient importance to quote in full in this connection:

"(1) Each truck must have a definite schedule giving the route and exact time of leaving each designated stop. This schedule must be followed so far as possible, and must be posted in a conspicuous place in the truck. A copy of schedule must be sent to office.

"(2) Students must not be allowed to stand on fenders or outside of truck.

"(3) As soon as students enter the trucks they are under the control of the schools, and must observe proper decorum at all times. Boisterous conduct will not be tolerated.

"(4) The truck drivers have the same authority as the teachers of the schools in enforcing order and discipline on the road to and from school.

"(5) Trucks carrying students should not exceed 15 miles per hour.

"(6) The truck driver must run his own car and never allow students to drive or interfere with the car in any way.

"(7) All trucks carrying students must come to a full stop at all railroad crossings. This is a state law.

"(8) These rules must be posted in a conspicuous place in each truck."

The uncontradicted evidence shows that Clark furnished his own trucks and kept them in repair; that he furnished his own drivers and paid them for...