Millard County v. Industrial Commission

• Decision Date: 27 July 1923
• Docket Number: 3983
• Citation: 217 P. 974,62 Utah 46
• Court: Utah Supreme Court
• Parties: MILLARD COUNTY v. INDUSTRIAL COMMISSION

217 P. 974

62 Utah 46

MILLARD COUNTY v. INDUSTRIAL COMMISSION

No. 3983

Supreme Court of Utah

July 27, 1923

Writ of review by Millard County, a municipal corporation, against the Industrial Commission of Utah to determine the validity of an order of the commission awarding compensation under the Workmen's Compensation Act to Thirza Rose for the death of her husband Floyd L. Rose.

AWARD ANNULLED, WITH DIRECTIONS.

J. A Melville, Jr., of Salt Lake City, for plaintiff.

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

CHERRY J. WEBER, C. J., and GIDEON and THURMAN, JJ., concur. FRICK J., did not participate.

OPINION

CHERRY, J.

This is a writ of review to determine the validity of an order of the Industrial Commission awarding compensation under the Workmen's Compensation Act to Thirza Rose for the death of her husband, Floyd L. Rose.

The sheriff of Millard county employed Rose to assist him in capturing a prisoner who had escaped from the county jail. Rose was engaged for four days in search of the fugitive, when he was discovered hidden under a building at or near Delta. In the effort to capture the prisoner Rose was shot and killed by the outlaw. Previous to his employment by the sheriff Rose was employed as an automobile salesman and earned $ 125 per month. While employed by the sheriff his earnings were $ 3 per day. At the time of his death his wife and one minor child were wholly dependent upon him for support.

Upon finding the facts as above stated the Industrial Commission concluded that "Rose was fatally injured by reason of an accident arising out of or in the course of his employment, while engaged by Millard county in the regular business of the county in apprehending a fugitive from justice;" that compensation should be based on his earnings as an automobile salesman, and awarded compensation to be paid by Millard county to Thirza Rose, for the benefit of herself and minor child, the sum of $ 16 per week for not to exceed 312 weeks.

It is contended by the plaintiff that the award should be set aside and annulled for the reasons: (1) That there is no evidence that Rose was employed by Millard county; (2) that, if employed, his employment was casual and not in the usual course of business or occupation of the county; (3) that the award is excessive because based on earnings greater than that of the particular service in which deceased was engaged when he met his death.

The sheriff testified that he employed Rose to assist him in the capture of the escaped prisoner; that he did not appoint him as a deputy in writing; that he did not ask the consent of the county commissioners, and that Rose was not sworn in as a deputy; that Rose worked four days under his supervision and direction; that he considered Rose had authority to arrest and apprehend the bandit, and was expected to do so if he had an opportunity. After the death of Rose the sheriff presented a claim against the county in favor of F. L. Rose amounting to $ 12 for "guarding and helping in apprehending Cirdo Rico (the escaped prisoner)" which was allowed by the county commissioners and paid to Rose's widow.

Comp. Laws Utah 1917, § 1461, provides:

"Every county, precinct, or district officer, except a county commissioner or a judicial officer, may, by and with the consent of the board of county commissioners, appoint as many deputies and assistants as may be necessary for the prompt and faithful discharge of the duties of his office. The appointment of a deputy must be made in writing, and filed in the office of the county clerk, and, until such appointment is so made and filed and until such deputy shall have taken the oath of office, no one shall be or act as such deputy."

It is contended by the plaintiff that, because Rose was not appointed as a deputy sheriff according to the formalities required by the statute, he could not act as such and was not an employe of the county. Although it is generally held that one who is actually acting as a deputy sheriff under color of an appointment is such officer de facto, although his appointment was not made with the formalities required by statute (35 Cyc. 1522), we think it wholly immaterial in this case whether Rose was a duly appointed...