Miller v. Industrial Commission
| Citation | 97 Utah 226,92 P.2d 342 |
| Decision Date | 14 July 1939 |
| Docket Number | 6002 |
| Court | Supreme Court of Utah |
| Parties | MILLER v. INDUSTRIAL COMMISSION et al |
Original certiorari proceeding by Daniel A. Miller against the Industrial Commission of Utah and others to review an order of the Commission denying to the plaintiff recovery of compensation for injury received by the plaintiff while working in a sewer trench.
Order of Industrial Commission denying compensation affirmed.
A. H Nebeker, of Salt Lake City, for plaintiff.
F. A Trottier, of Salt Lake City, for defendants.
OPINION
The plaintiff, applicant before the Industrial Commission, is before us on a writ of certiorari to review an order of the Commission denying him recovery of compensation for an injury received by him while working in a sewer trench in Farmington City. The Commission held that at the time of the injury Miller was not employed by Farmington City and denied the application for compensation.
It is the contention of Farmington City and its insurer the State Insurance Fund that at the time of injury Miller was employed by one Robert Griffith, and it is admitted that the injury occurred on the property of Robert Griffith in a lateral trench dug to connect Griffith's store with the sewer. Whether Miller was employed by Farmington City and was therefore entitled to workmen's compensation or was employed by Griffith is a jurisdictional question which we must decide on a preponderance of the evidence. Weber County-Ogden City Relief Committee v. Industrial Commission, 93 Utah 85, 71 P.2d 177; Holt v. Industrial Commission, 96 Utah 484, 87 P.2d 686.
During the summer of 1936 Farmington City constructed a sewer as a Public Works Administration project, using federal and state money therefor. It was part of the plan to construct laterals onto the property of adjoining owners, to which they could make connection, but the money ran out, and the city could not effect the connections. Permission was given to several property owners to connect with the sewer at their expense pending the obtaining of funds, with a provision for reimbursement by the city. In pursuance of this arrangement Miller dug the trench to the Griffith store and was laying the pipe when the trench caved in on him, breaking his collar bone and crushing his chest severely. Details of the working arrangement are in conflict, and while it must be said that the employment and all arrangements were extremely informal they were quite satisfactory to all concerned and would have given rise to no disputes had not this injury occurred. But when the unforeseen happens the simple, informal arrangements are found not to provide a ready key for determining the intentions of the parties, and lawyers, commissions, and courts must be called in to attempt to reconstruct the bargaining positions and attitudes of the parties in order to determine what effect the forms of law must give to an informal, sketchy working arrangement in order to place liability for an emergency which was not contemplated or provided for by the parties.
In September, 1936, a petition was circulated in Farmington to enable residents to assent to payment of a $ 1 per month payment for sewer, the city to run the lateral to the foundation of the houses. A later petition was circulated placing the fee at $ 1.50 per month without reference to laterals; then a compromise petition fixing the fee at $ 1.25 was circulated and well received but it likewise made no mention of responsibility for laterals. But the transcript makes plain the understanding of the residents and the city officials that the city was obligated to construct the laterals at least to within five feet of the foundations; and whether the obligation existed is not here material since all parties assumed it to exist. The arrangement to lay the sewer pipe here involved was therefore based on the city's obligation so to do and was brought about by its present inability to pay the labor costs.
Mr. Griffith, however, was troubled by the accumulation of water in the basement under his store and expressed, along with some others, a willingness to pay for labor to make the connection. There is a conflict in the testimony as to whether the city agreed to make reimbursement from funds that would be available, or that it would do so only in the event that it secured the funds. The belief and intention probably was, as indicated by Mr. Griffith and Mayor Sessions, that the city did not promise absolutely to reimburse but did promise to reimburse when the money for such purpose was available. It was an absolute promise to reimburse out of a contingent fund.
The hiring of Miller was done by Griffith and not the city. Miller made the first advance--really an offer to make the connection and Griffith accepted his offer, dependent on word from the city that the pipe would be furnished. Miller's contact at that time with city officials was merely to get the word to go ahead. The true situation is probably indicated by a statement of Mr. Miller on cross-examination:
Mr. Griffith hired Mr. Miller and was the one who could fire him. The city could discharge him only indirectly by reporting to Mr. Griffith that he was not doing his work according to the standard necessary to insure good operation of the sewer.
Another circumstance adds force to the view that Griffith and not the city did the hiring. Griffith's uncle was employed to assist Miller in laying the pipe and it is uncontroverted that he was hired by Griffith. It is true that the city furnished the pipe, the oakum, tar, and bucket for making joints, and placed the stakes indicating proper grade for the laterals all over the city at the time the main systems were installed. But that is quite consistent with Griffith's being the employer of Miller. A point is also made that the city supervised the installation. The mayor did either suggest or direct that boards be set under the pipe due to the soft base, but this is consistent either with supervision by the city as employer or with the exercise of the right to require proper installation from an engineering standpoint. Since such a requirement was stated by the mayor to Griffith, it was probably made as engineering supervisor rather than employer, although Mr. Miller was also so instructed.
The plaintiff stresses the further point that while the work was in progress the city twice called Miller from his work, once to dig a grave and once to make a water connection, and that Mr. Griffith was not consulted either time. This argument loses its force when it is noted that the City's engineer-manager did not "direct" Miller to do other work, but merely asked him if he were free to do it and each time Miller replied that he was. This was more in the nature of taking a liberty than doing the city employer's bidding.
Plaintiff notes that Griffith gave no instructions whatever as to how Miller should proceed. This does not indicate so much that Griffith was not the employer and lacked power of control as that he knew nothing about laying sewers, which he admitted. The facts are that Miller was very much a free agent on the job. He kept track of his own time, did his own supervising because he was familiar with the kind of work, and felt perfectly free to work a whole day, a half day, or to do odd jobs for the city between times. He felt free to ignore the advice of the mayor who at one time advised him to use trench jacks or a system of interval tunnelling to prevent cave-ins.
Both sides introduced testimony about the wage Miller was to receive--whether the city fixed it, the P. W. A. scale was followed, or...
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