Luker Sand & Gravel Co v. Industrial Commission

• Decision Date: 22 June 1933
• Docket Number: 5390
• Citation: 23 P.2d 225,82 Utah 188
• Parties: LUKER SAND & GRAVEL CO et al. v. INDUSTRIAL COMMISSION et al
• Court: Utah Supreme Court

23 P.2d 225

82 Utah 188

LUKER SAND & GRAVEL CO et al. v. INDUSTRIAL COMMISSION et al

No. 5390

Supreme Court of Utah

June 22, 1933

Original proceeding by the Luker Sand & Gravel Company employer, and State Insurance Fund, insurance carrier, for certiorari against the Industrial Commission, Mary H. Martin and Luther Osment, parents of Lucian Osment, deceased, to review decision of Industrial Commission awarding compensation for death of deceased.

Order of the Industrial Commission vacated.

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

Joseph Chez, Attorney General, and Grover A. Giles, Deputy Attorney General, for defendants.

MOFFAT Justice. STRAUP, C. J., and ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

MOFFAT, Justice.

This case is before the court on a writ of certiorari to review a decision of the Industrial Commission of Utah. On the testimony hereinafter set forth, the Industrial Commission made findings. Among the findings the following statements occur:

"That Lucian Osment, on the 9th day of September, 1931, was employed by the Luker Sand & Gravel Company; that on said date the Luker Sand & Gravel Company had in its employe three or more workmen and had procured Workmen's Compensation insurance with the State Insurance Fund. That on the said date the said Lucian Osment was operating a truck under a verbal agreement with W. W. Hobbs, the said Lucian Osment was to pay one-half of the expenses in operating the truck and to share 50/50 in the earnings of such operation. Payment was made by the Luker Sand & Gravel Company on the basis of loads hauled. Mr. Hobbs' truck operated as other trucks on the job, worked when hauling was needed and laid off when no deliveries were required. The Luker Sand & Gravel Company retained direction and supervision over Lucian Osment and he was subject to their directions and control."

The Industrial Commission ordered that

"the Luker Sand & Gravel Company and/or (whatever that hybrid combination "and/or" may mean) the State Insurance Fund pay into the State Treasury of Utah to the credit of the Employees' Combined Injury Benefit Fund the sum of $ 864.24, as provided in section 3140, subsection 1 of the State Industrial Act [as amended by Laws 1921, c. 67], for the death of Lucian Osment."

The petitioners are the Luker Sand & Gravel Company and the State Insurance Fund. It is the contention of the petitioners that Lucian Osment was not an employee of the Luker Sand & Gravel Company at the time of his death. They allege that he was an "independent contractor." The petitioners applied for a rehearing, which was denied. The petition for this writ of review was filed in time.

Counsel for petitioners and counsel for defendants agree as to the issue, and counsel for defendants accept the statement of the testimony made by petitioners: It is agreed that the only issue or question involved is whether Lucian Osment was an employee of the Luker Sand & Gravel Company or an "independent contractor" at the time of his accidental death.

During the summer of 1931, the federal government through its contractor was constructing the Veterans' Hospital in Salt Lake City. The sand and gravel was being furnished by the Luker Sand & Gravel Company from its gravel pit located near Becks Hot Springs in the northerly part of Salt Lake City. While Lucian Osment was hauling gravel, the truck he was driving got out of control on a hill and tipped over and killed him.

Only the testimony regarding the question in issue as above stated will be referred to.

Concerning the matter, Mr. Hobbs testified in substance that he attempted to get a contract from the Luker Sand & Gravel Company to haul all the sand and gravel for the Veterans' Hospital job. Mr. Hobbs was unsuccessful in this. He was told there were others who had been working for the company and that it would not be justice to displace those having seniority. He was told that, if he had some trucks, that he could put on, he might do so.

It appears that on Monday, September 7, 1931, Mr. Hobbs put one of his trucks on the job hauling sand and gravel from the gravel pit to the Veterans' Hospital. About noon this driver, who had picked up or became acquainted with Lucian Osment, drove into Mr. Hobbs' place, bringing Lucian Osment with him. This driver advised Mr. Hobbs that he had secured a better job and desired to quit.

Osment said he was a truck driver and was seeking employment. Hobbs explained to Osment that he could not guaranty him anything; that the matter of how much work he did would determine how much wages he would get; that under the conditions he could take the truck and haul sand and gravel; that the gravel company would pay 50 cents a yard; and that they, Hobbs and Osment, would cut fifty-fifty, each to furnish half the gas and oil.

Hobbs owned the truck, and after lunch went over part of the trip with Osment to show him the route, and told him to follow the other trucks. He told him where to go and that the people at the pit would instruct him where to go and how much of the sand and gravel to haul.

Osment worked Monday and Tuesday, and was working Wednesday when the accident happened. After his death, Hobbs received a check for about $ 20 from the Luker Sand & Gravel Company. The truck was loaded with sand at the time of the injury. Its destination was the Veterans' Hospital. It came from the Luker Sand & Gravel Company pit. Osment was killed at the corner of Almond street and West Second North street, Salt Lake City.

The Luker Sand & Gravel Company had nothing to do with the placing of Osment on the truck.

On Tuesday night Osment brought the truck home and informed Hobbs that the gravel company had instructed him to put some higher side boards on, that he was not carrying enough. They bought two two by sixes and put on the truck.

Sometimes the gravel company would direct the truck drivers to Fort Douglas or the Miners' Hospital. Whether the driver wanted to go was wholly the business of the driver. The price varied per yard for different distances. Hobbs said he could discontinue the employment at any time. The gravel company's only business was to direct where to load and unload.

Mr. Gordon Taylor Hyde, president of the Luker Sand & Gravel Company, testified that his company had the contract to furnish sand and gravel for the Veterans' Hospital job at 95 cents a yard; that he told Mr. Hobbs that he would be glad to use his trucks any time he could; that he could not give him the exclusive contract; that the company had a number of men who had been with them a long time; that all men were paid 50 cents a yard based on delivery point; that, if he cared to put his trucks to work on the same basis, he might do so; that the trucks were checked as they arrived by the government inspector on the job; that the company did not direct the truck driver as to the route to take; that the only man the company met in connection with the deal was Mr. Hobbs; that the company had never met or discussed the question with any one else, and this was the first experience with Mr. Hobbs; that there was a foreman at the pit; that the company had no trucks; that the company expected this man to put in his time; that they did not expect the men would confine their work to this company; that the men who were working for them had the privilege of taking contracts from anybody; but in emergencies it was expected the truckmen would take care of the company work. Contracts could be terminated or new ones made at any time. Payment was made on the basis of material delivered. The company had no control of trucks on the outside. Payment was made on the basis of receipted delivery slips brought to the office. That the company had nothing to do with telling the truck drivers where to dump the load, and could not tell the gravel men to haul to one place or another, although the price per yard differed, as the company had no jurisdiction over the truck. Mr. Hyde also testified that he did not know, nor had he talked to, Lucian Osment.

It appears from this undisputed testimony that the Sand & Gravel Company did not employ Osment. None of the officers or agents of the company had ever talked to Osment about his employment or directed him in any way therein. Mr. Hobbs owned the truck, and the sand and gravel hauled for the company was on a yardage basis, in pursuance of the understanding between Mr. Hobbs and the company on the one hand and between Mr. Hobbs and Mr. Osment on the other.

We have examined the record carefully to determine in what way or manner the Sand & Gravel Company had the right to control the manner or method of doing the work, upon what basis it could be said that Mr. Hobbs had any authority direct or by implication to employ any one for the Sand & Gravel Company. We have found none. There is no evidence in the record that the Sand & Gravel Company ever knew or interviewed or gave any directions or orders to Osment at any time. Having found no direct or implied authority for Mr. Hobbs to employ any one on behalf of the Sand & Gravel Company, there is the same absence of any act or communication tending to establish an implied ratification. Nor is there any claim or suggestion that Hobbs himself was an employee of the Sand & Gravel Company.

That Lucian Osment was not an employee of the Sand & Gravel Company is manifest. That he was an independent contractor employed by Mr. Hobbs seems equally manifest. In no event could Osment's relationship to the Sand & Gravel Company be more intimate than that of Hobbs himself.

Before the passage of the Workmen's Compensation Act, a number of decision growing out of negligence cases had been made wherein the elements that distinguish an independent...