M & K Corporation v. Industrial Commission

• Decision Date: 28 January 1948
• Docket Number: 7054
• Parties: M & K CORPORATION et al. v. INDUSTRIAL COMMISSION et al
• Court: Utah Supreme Court

189 P.2d 132

112 Utah 488

M & K CORPORATION et al. v. INDUSTRIAL COMMISSION et al

No. 7054

Supreme Court of Utah

January 28, 1948

Original Certiorari Proceedings M & K Corporation, Also Known As Modjlin & Kahn, Employer, And The Hartford Accident &amp Indemnity Company, Insurance Carrier, Against The Industrial Commission of Utah And Ethel M Harries, Widow of Deceased Employee, Willard James Harries, And Benjamin R Harries And Roy W Harries, Minor Children of The Deceased Employee, To Review An Award of The Industrial Commission To The Widow And Children

Award sustained.

Elias L. Day and Arthur E. Moreton, both of Salt Lake City, for plaintiffs.

Grover A. Giles, Atty. Gen., and Clyde & Coray and A. John Brennan all of Salt Lake City, for defendants.

McDONOUGH C. J., and PRATT, J., concur.WOLFE and LATIMER, JJ., concur in the results.

OPINION

WADE, Justice.

Plaintiffs obtained a writ of certiorari to review an Industrial Commission award to his dependents for the death of Willard James Harries. At the time of his death Harries was the general superintendent in charge of a building project at the Utah State Agricultural College at Logan, Utah, where approximately three hundred houses were being constructed by his employer, the plaintiff Modjlin & Kahn Corporation, hereinafter called M & K Co. The other plaintiff, Hartford Accident & Indemnity Company, carried the Workmen's Compensation Insurance Liability for the M & K Co.

On Saturday, August 31, 1946, as such superintendent, Harries took a ten wheeled truck of his employer from Logan to Salt Lake City where he loaded it with roofing materials belonging to his employer, for use in the Logan project, and accompanied by his fourteen year old son proceeded to return with the truck and materials to Logan. In Sardine canyon on the most direct route to his destination, while the son at his father's request was driving with his father on the seat beside him directing the operation, the truck was overturned and the father killed.

The son was not an employee of M & K Company; he did not have, and on account of his age could not obtain a driver's license, and was therefore forbidden by law to drive a vehicle on the highways of this state. See Sec. 57-4-4 and 57-4-7, (all sections cited except where otherwise stated are to U.C.A. 1943). It is unlawful and made a misdemeanor for any person to knowingly permit a minor under the age of 18 years without a license to drive any vehicle on any highway of this state. Secs. 57-4-29 and 57-4-33.

Our only question is: Was the deceased 'killed, by accident arising out of or in the course of his employment,' as that provision is used in Sec. 42-1-43. Since the 1919 amendment to that section when the word 'or' which we have italicized above was substituted for the word 'and' it is not necessary for the accident to arise both out of and occur in the course of his employment, it is sufficient if the accident only arises in the course of his employment. Workmen's Compensation statutes both in this country and throughout the British Empire usually require, as did ours before the amendment, that the accident arise both out of and in the course of the employment, and this must be kept in mind in considering the decisions of other jurisdictions. We have often pointed out this distinction and indicated in many cases that the recovery was allowed on that account and that it probably would not have been allowed without the amendment. Tavey v. Industrial Commission, 106 Utah 489, 150 P.2d 379; Park Utah Consolidated Mines Co. v. Industrial Commission, 103 Utah 64, 133 P.2d 314; Cudahy Packing Co. v. Industrial Commission, 60 Utah 161, 207 P. 148, 28 A.L.R. 1394, affirmed Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532; State Road Commission v. Industrial Commission, 56 Utah 252, 190 P. 544; Twin Peaks Canning Co. v. Industrial Commission, 57 Utah 589, 196 P. 853, 20 A.L.R. 872, and Utah Apex Mining Co. v. Industrial Commission, 67 Utah 537, 248 P. 490, 49 A.L.R. 415. We have also repeatedly held that this statute should be liberally construed and if there is any doubt respecting the right to compensation it should be resolved in favor of a recovery. See cases above cited and Chandler v. Industrial Commission, 55 Utah 213, 184 P. 1020, 8 A.L.R. 930. This case was before the amendment.

In the Utah Apex Mining Co. v. Industrial Commission, supra [67 Utah 537, 248 P. 493], we quoted with approval from 71 C. J. 644, under Workmen's Compensation Acts, Sec. 396, where it is said: '* * * the words 'arising out of' are construed to refer to the origin or cause of the injury, and the words 'in the course of' to refer to the time, place, and circumstances under which it occurred. * * *.'

The distinction being that in order for an accident to arise out of the employment a more definite and closer causal relationship is required than is necessary for an accident to arise in the course of the employment but in the latter a closer relationship must exist as to time and place and as to the nature and type of work being performed. In other words the requirement that the accident arise in the course of the employment is satisfied if it occurs while the employee is rendering service to his employer which he was hired to do or doing something incidental thereto, at the time when and the place where he was authorized to render such service. Current Trends in Workmen's Compensation by Horovitz, on what constitutes 'arising out of' commencing at page 507, and on what constitutes 'in the course of' commencing at page 666.

However, where a disease is involved, even under the liberal provisions of our statute, we have refused to open the door to a recovery for all injuries, without any causal relationship between the employment and the accident, merely because the accident occurs on the premises of the employer during the hours of employment while the employee is rendering the service or something incidental thereto for which he was hired. Dee Memorial Hospital Ass'n v. Industrial Commission, 104 Utah 61, 138 P.2d 233; Robertson v. Industrial Commission, 109 Utah 25, 163 F.2d 331; See also Horovitz's Current Trends in Workmen's Compensation pages 666 to 668, where the author justifies the above requirement even where it is only necessary that the accident arise in the course of the employment on the ground that the statute only requires compensation insurance and not health insurance.

So our problem is narrowed to the determination of whether deceased was acting in the course of his employment at the time of the accident. If he was, there is no question but what the necessary causal relationship existed between the employment and the accident. Here no disease is involved and at the time of the accident, Harries' work required him to be on that very truck at the time when it overturned. That a truck may be overturned on the mountain road between Salt Lake City and Logan is one of the hazards to which his employment of trucking materials over that route exposed him.

Deceased was the superintendent of M & K Corporation's building project in Logan. As such he had the responsibility of assigning the various employees including himself to the various jobs, and of directing and overseeing all of the work. Morgan v. Industrial Commission, 92 Utah 129, 66 P.2d 144. Plaintiffs concede that deceased was in the course of his employment in assigning to himself the job of taking this truck to Salt Lake City and returning with these materials, as long as he was at the wheel operating the truck. They even go further and say that deceased would have been in the course of his employment had he turned the operation of the truck over to another person, if such person was a competent and licensed driver and employed by the company, so long as deceased rode with such person on the truck in charge of its operation while trucking these materials back to Logan. Thus they concede, as they must, that deceased was authorized under his employment to assign to himself as well as other employees of the company the various tasks to be done in the course of the construction project, and that he was in charge of and had the duty of supervising all of that work. They concede that he properly assigned to himself the job of trucking these materials from Salt Lake City to Logan and that he might have engaged another competent licensed driver to go with him and change him off in the driving of this truck without departing from the course of his employment. But they contend that when deceased turned the operation of this truck over to his son who was not an employee of the company and to whom deceased was forbidden by law to allow to drive, and who, plaintiffs contend, was not a competent driver, he thereby departed from the course of his employment and his dependents cannot recover.

We are only incidentally concerned with the fact that the boy was not an employee of the company. Since the boy is not claiming the right to recover for his own injuries, the fact that he was not an employee is only material here to the extent that it throws light on the question of whether his father was acting in the course of his employment. That fact did not change the nature of the act or service which deceased was rendering for his employer at the time of the accident, he was doing exactly the same thing in the same manner at the same time and in the same place as he would have been doing had the boy been an employee of the company and a competent and licensed driver. He was seated on the truck beside the driver, in charge of its operation and supervising the taking of this truck loaded with materials to Logan. Unless the fact that deceased allowed the boy to drive, who...