Nevada Indus. Commission v. Peck, 3662
| Decision Date | 09 January 1952 |
| Docket Number | No. 3662,3662 |
| Citation | 69 Nev. 1,239 P.2d 244 |
| Parties | NEVADA INDUSTRIAL COMMISSION v. PECK et al. |
| Court | Nevada Supreme Court |
C. E. Horton, Ely, John R. Ross, Carson City, for appellant.
Martin J. Scanlan, Reno, for respondent Peck.
Woodburn, Forman & Woodburn, Gordon Thompson, Reno, for respondent Woomack.
This is an appeal from a judgment of the District Court of the State of Nevada, in and for the County of Washoe, Department No. 1, in an action tried to the court under the terms of the Nevada Industrial Insurance Act; also from an order denying appellant's motion for a new trial. The action was instituted by Stanley W. Peck, plaintiff, for damages for personal injuries, against Burton V. Woomack and William J. Heffler, as defendants; thereafter William J. Heffler was dismissed from the action. Subsequently and pursuant to an order of the court the Nevada Industrial Commission was made a defendant in the case, and filed its pleading pursuant to such order.
Briefly stated the facts are as follows: In January, 1947, respondent Woomack was the operator of the Pioneer Hotel in the city of Reno. He had employed one William J. Heffler to install, reconstruct and encase terra cotta flues for the hotel building. Respondent Stanley W. Peck was engaged as a workman in this operation, and on January 7, 1947, was struck by a falling brick, seriously injuring him. The injury necessitated a delicate and dangerous operation on his skull, forehead and brain, which required the placing of a metal plate of tentalum, which is an element with a consistency of silver.
Woomack had regarded Heffler as an independent contractor in the doing of this work and had not reported to the Nevada Industrial Commission any of the workmen as employees of the hotel. Following his injury Peck had communicated with the Commission with respect to compensation and had been advised that he was not covered inasmuch as the hotel had not reported him as an employee. He thereupon brought this action against Woomack and Heffler asking damages for negligence. After trial and submission of the matter, the trial court, on September 23, 1949, found that a complete determination of the controversy could not be had without the presence of the Nevada Industrial Commission, and ordered that the Commission be made a party defendant. This having been done, the matter was retried.
Upon submission after the second trial the court found that Heffler was not an independent contractor and that Peck was an employee of Woomack; that Woomack had accepted the provisions of the Nevada Industrial Insurance Act and that Peck had not rejected the terms of that act as provided by the act; that the only reason why Peck had not received the benefits of the act was due to the refusal of Woomack to include the name on the payroll report to the Commission and to give notice of injury.
On November 27, 1950, judgment was entered in favor of Peck decreeing that he have all the benefits of the Nevada Industrial Insurance Act and that the Nevada Industrial Commission pay him all the benefits to which he was entitled. The court further ordered that the defendant Woomack under the name of the Pioneer Hotel file an amended payroll report for the month of December, 1946, and the month of January, 1947, showing Peck as an employee for the days he worked during those months. From this judgment and the subsequent order of the trial court denying motion for a new trial the commission has appealed.
The only question raised by this appeal is whether the fact that Woomack had never reported Peck as an employee nor any of the other workmen engaged in the installation of flues, and had confined his payroll reports to ordinary hotel employees, the premiums for whose coverage were substantially less than for workmen engaged in the installation of flues, would preclude a finding that Peck was covered under the Nevada Industrial Insurance Act. No question is raised as to the failure to give notice of injury and no question is raised as to whether Peck was in fact an employee of Woomack.
Appellant has assigned to the trial court two errors, as follows: 1. Error in finding 'that the plaintiff was covered by the provisions of the act at the time the accident occurred on January 7, 1947.' 2. Error in adjudging 'that the plaintiff have all the benefits under the Nevada Industrial Insurance Act for and as a result of the injuries received on the 7th day of January, 1947.'
The first section to consider is section 2680 NCL 1929, first paragraph: 'When, as in this act provided, an employer shall accept the terms of this act and be governed by its provisions, every such employer shall be conclusively presumed to have elected to provide, secure and pay compensation according to the terms, conditions, and provisions of this act for any and all personal injuries by accident sustained by an employee arising out of and in the course of the employment * * *.' (Emphasis supplied.)
This section is subject to only one interpretation in our opinion, and that is that the act is intended to accomplish complete coverage for all employees of an employer. If the act be accepted, then under the conclusive presumption provided, it is accepted as to all employees. This would eliminate any possibility of construing an employer's conduct in failing to list an employee on his payroll or in failing to make proper segregation of employment as an intent or as demonstrating intent not to cover that employee or class of employees. The fact that in this case it can be proved that the employer did not intend to cover Peck therefore cannot be asserted against the conclusive statutory presumption.
In the case of Pershing Quicksilver Co. v. Thiers, 62 Nev. 382, 152 P.2d 432, the headnotes read:
* * *' (Emphasis supplied.)
The only question remaining, therefore, is whether by his conduct the employer is to be deemed to have rejected the provisions of the act. The Industrial Commission apparently takes the position that this was done at least so far as concerned Peck or so far as concerned all employees of Woomack who did not fall within the general classification of hotel employees. However, under our views with respect to the quoted portion of sec. 2680, it would not be possible to accept the act in part. If the employer by his conduct rejected the terms of the act it was rejected in toto and would result in a lack of coverage for any employee of Woomack whether that employee had been reported or not.
In this connection we are concerned with the language of sections 2680 and 2702. 2680 provides 'failure on the part of any such employer to pay the premiums as by the provisions of this act required shall operate as a rejection of the terms of this act.' Section 2702 provides 'failure on the part of any such employer to comply with the foregoing provisions shall operate as a rejection of this act * * *.' It is to be noted that in each instance the rejection is not partial but is a complete rejection of the act or of its terms and could only accomplish the result that the employer was in the same position he would occupy had he failed to accept the terms of the act originally.
' § 2702. * * * § 21. * * * Every employer electing to be governed by the provisions of this act, who shall enter into business or resume operations subsequent to July 1, 1925, shall, before commencing or resuming operations, as the case may be, notify the commission of such fact, accompanying such notification with an estimate of his monthly pay-roll, and shall make payment of the premium on such pay-roll for the first two months of operations.
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