Moser v. Utah Oil Refining Company

Decision Date24 April 1946
Docket Number7277
Citation66 Idaho 710,168 P.2d 591
PartiesBETTY JO MOSER, Claimant and Respondent, v. UTAH OIL REFINING COMPANY, a corporation, and JAMES LEESE, Defendants and Appellants, and AMERICAN EMPLOYERS INSURANCE COMPANY, a corporation, Surety, Defendant
CourtIdaho Supreme Court

1. Workmen's compensation

Where oil company leased plant for storage and distribution of oil and petroleum products to lessee but in lessee's absence exercised discretion and control for him over his employees determination that the oil company and lessee were both employers of employee at time he sustained injury at plant was justified. (I.C.A., secs. 43-1611, 43-1806.)

2. Workmen's compensation

Where notice of accident was not given employers until more than 60 days after accident, evidence sustained determination that there was no prejudice by failure to sooner notify employers of accident. (I.C.A., sec. 43-1205.)

Appeal from an order of the Industrial Accident Board awarding compensation.

Affirmed.

Burton W. Musser, Oscar W. Worthwine, and J. T. Hammond, Jr., for appellant Utah Oil Refining Company.

The defendants and each of them were prejudiced by lack of notice or knowledge of the alleged injury previous to the knowledge thereof obtained by defendant Leese in November, 1944. (Section 43-1205, Idaho Code Annotated 1932; The Purpose of Notice; Bellanca v. Spencer Lens Company, 211 N.Y.S 555, 214 A.D. 824; Whitmyre v. International Business Machines Corporation, 267 N.Y. 23, 195 N.E. 529; Salt Lake City v. Industrial Commission (Utah), 140 P.2d 644; Pine v. Davis (Okla.), 152 P.2d 590; Ogletree v. Jones (N.M.), 106 P.2d 302; Long v Brown, 64 Ida. 39, 128 P.2d 754; Failure To Give Notice -- Prejudice; Long v. Brown, 64 Ida. 39, 128 P.2d 754.)

Robert Moser was not an employee of Utah Oil Refining Company. (The Texas Company v. Higgins (C.C.A.), 118 F.2d 636; Indian Refining Company v. Dallman, (C.C.A.), 119 F.2d 417; Glenn v. Standard Oil Company (C.C.A.), 148 F.2d 51.)

Finis Bentley for appellant James Leese.

Where from the facts two different inferences may be deduced, one of which authorizes the award and the other of which does not, the Board may not arbitrarily disregard one of the inferences and choose the other as supporting its award. (Hawkins v. Bonner County, supra; McCaw v. O. S. L. R. R. Co., 49 Ida. 151, 282 P. 606; McGee v. Hargrave Motor Co., 50 Ida. 442, 296 P. 774; Spring Canyon Coal Co. v. Ind. Com. (Utah), 201 P. 173.)

F. E. Tydeman for respondent.

The Board did not err in concluding that Utah Oil Refining Company was the employer of the deceased. (Hansen v. Rainbow Mining Company, 52 Ida. 547; Larson v. School District, 53 Ida. 49; In re Fisk, 40 Ida. 305.)

In this case the Appellant Oil Company disclaimed being an employer and would have made no investigation and Leese denied any liability and refused to take any action in the matter.

Even if the Court should hold that it was not necessary to give notice as required in the case of death, it should be held that notice was given as soon as practicable because it was given as soon as deceased realized that his injury was serious. (Woodbury v. Arata Fruit Company, 64 Ida. 227, page 237.)

The deceased was an employee of Utah Oil Refining Company. (Section 43-1806, Section 43-1181; In re Fish, 40 Ida. 304; Modlin v. Twin Falls, 49 Ida. 199; Taylor v. Blackwell Dr., 37 Ida. 707; Hanson v. Rainbow Mining Company, 52 Ida. 547; Larson v. School District, 53 Ida. 49.)

Givens, J. Ailshie, C.J., and Budge, Holden and Miller, JJ., concur.

OPINION

Givens, J.

Respondent secured a compensation award for the death of her husband as caused by an industrial accident, against appellants, who, by their appeal contend he was the employee of only appellant Leese and that respondent has not shown appellants were not prejudiced by failure of respondent to notify them of the accident within sixty days of its occurrence.

Appellant Oil Company owns a plant consisting of buildings, tanks and appropriate equipment for the storage and distribution of oil and petroleum products in Pocatello, Idaho.

Appellants contend Leese was an independent lessee or distributor, and that appellant Oil Company had nothing to do with the employment of deceased. The appellant Insurance Company was the insurance carrier for the Oil Company.

The agreement between the Company and Leese, in part, provides:

"THAT, WHEREAS, Company has leased to or sublet to or permitted party of the second part to occupy and use for the limited purposes hereinafter contained, the following described tract of land situate in the City of Pocatello, County of Bannock, State of Idaho, to-wit:"

describing the real estate upon which the buildings, fixtures, equipment, machinery and appliances owned by appellant Company, were situated.

* * * *

"2. Party of second part (Leese) agrees:

"(a) To act for Company in the sale and distribution of gasoline, kerosene, lubricating oils and other petroleum products, tires, batteries and other merchandise manufactured, sold, handled or otherwise dealt in by Company in that territory within the State of Idaho, described as follows:" * * * (designating Leese's trade territory in Bannock County area) * * *

"(a-1) To act for the company in the storing, handling and transferring of storehouse supplies to other plants and for service stations of the company as directed by the company.

"(b) To use his best endeavors to sell and promote the sale of such products of Company as may be in his custody within the territory above described". * * *

Then were included inventories of the equipment and appliances delegated.

Leese was to carry workmen's compensation insurance, which, though then required by the contract and the statutes if he were an independent agent, nevertheless, he did not do. Further --

"(7) * * * *

Company is specifically authorized and empowered to deduct from any money accruing to party of second part: * * *

"(b) The amount, or amounts, of any unauthorized credit extended by party of second part". * * *

Salary checks to appellant Leese and those working for him were made out in, and sent from, the Company's office in Salt Lake; the asserted reason being it afforded a more satisfactory way for the deduction of employees' income tax and also for handling the unemployment compensation premiums based on the payroll.

William J. Wilson, Division Manager for the Oil Company at the Pocatello Division, had his office in the building owned by appellant and in Mr. Leese's absence, exercised direction and control for him over his employees.

On the buildings in various locations were signs "Utah Oil Refining Company" and "Home & Office of Utah Oil Refining Company", and the three trucks used by appellant Leese had this notation: "J. A. (Jim) Leese, distributor of Utah Oil Products".

The Board concluded from the above circumstances that:

"The Refining Company was the owner of the premises and virtually the proprietor of the business carried on at the premises on which deceased received his personal injury caused by an accident on August 16, 1944, and the defendant, James Leese, was the lessee of the same and under the provisions of Sections 43-1611 and 43-1806, I.C.A. both the defendants, Utah Oil Refining Company and James Leese were the employers of the deceased at the time he sustained his accident and received his injury on August 16, 1944".

This construction was clearly justified by the interpretations and exposition of Section 43-1611 [1] and Section 43-1806, [2] I.C.A. in Moon v. Ervin, 64 Ida. 464, 133 P.2d 933.

Deceased's wife testified she usually went to the plant every day and sometimes helped her husband with some of his small tasks. She and a friend of hers, Mrs. Kinkade, testified they happened to go to the plant on August 16, 1944, and found deceased apparently ill and with a bleeding wound on his head, which he stated he had received by bumping his head on a loading rack while he was at work in the distributing plant. The two women urged him to see a doctor, but he declined, declaring the injury was minor and he would soon feel all right. He had had some trouble with his head prior to that time and it later developed he had a tumorous condition which, while of such a nature as to be ultimately and perhaps within sixteen to eighteen months of the time in question, fatal; according to the only physician who was called and testified, was accentuated, aggravated and made worse by trauma.

Deceased continued work until October, 1944. His condition then was of such a serious nature that he consulted Dr. Martineau of Pocatello, who upon finding he had been previously treated by Dr. Harrow of Salt Lake City, suggested he return to Dr. Harrow -- which he did in November. Dr. Harrow then operated upon deceased in Salt Lake City and drained a cranial hemorrhage. Deceased returned to Pocatello and becoming progressively worse, was again operated upon in Salt Lake in January, 1945, and died January 18 of that year. The official death certificate, signed by Dr. Harrow, gave as the cause of death, 'a brain tumor, right pareital lobe, malignant glioblastoma multiforma. Duration, five months'.

The Board found no notice of the accident was given appellant Leese or the Oil Company until November, 1944, more than sixty days after the related accident. Both appellant Leese and Wilson, the Oil Company Division Manager, admitted deceased then told them he had bumped his head in the plant in August. Their then only denial of liability was based upon the ground that he was not an employee of the Oil Company, and by Leese that:

"A. Well, I told him I didn't feel like being any party to a deal...

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3 cases
  • Tucker v. Union Oil Co. of California
    • United States
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    • November 5, 1979
    ...551 (1962); Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831 (1948); I.C. §§ 72-102, -216(1), (2). See also Moser v. Utah Oil Refining Co., 66 Idaho 710, 168 P.2d 591 (1946). Here, however, no general contractor-subcontractor relationship existed between Collier Carbon and Feed Services, a......
  • Christensen v. West
    • United States
    • Idaho Supreme Court
    • February 14, 1968
    ...§ 5-203.26 See authority cited n. 3.27 See Frost v. Idaho Gold Dredging Co., 54 Idaho 312, 31 P.2d 270 (1934); Moser v. Utah Oil Refining Co., 66 Idaho 710, 168 P.2d 591 (1946); cf., Ansbaugh v. Potlatch Forests, Inc., 80 Idaho 515, 334 P.2d 442 (1959).28 Supra n. 10.29 Id., 79 Idaho at 452......
  • Kennedy v. Evergreen Logging Co.
    • United States
    • Idaho Supreme Court
    • December 18, 1975
    ...a herniated disc as early as March 1973 and treated and released the claimant in May 1973 without surgery. In Moser v. Utah Oil Refining Co., 66 Idaho 710, 168 P.2d 591 (1946), cited as authority by Kennedy, the claimant's preexisting brain tumor was aggravated by a blow to the head which h......

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