Peterson v. Sorensen

• Decision Date: 04 January 1937
• Docket Number: 5476
• Citation: 65 P.2d 12,91 Utah 507
• Court: Utah Supreme Court
• Parties: PETERSON v. SORENSEN

65 P.2d 12

91 Utah 507

PETERSON v. SORENSEN

No. 5476

Supreme Court of Utah

January 4, 1937

Rehearing Denied March 6, 1937.

Appeal from District Court, Third District, Salt Lake County; O. W McConkie, Judge.

Action by Harvey E. Peterson against Esper C. Sorensen. Judgment for plaintiff, and defendant appeals.

REVERSED, and a new trial granted.

Harley W. Gustin, of Salt Lake City, for appellant.

Willard Hanson, of Salt Lake City, for respondent.

MOFFAT Justice. ELIAS HANSEN, C. J., and FOLLAND, J., concur. LARSON, District Judge, EPHRAIM HANSON, Justice, concurring in part; dissenting in part. WOLFE, J., being disqualified, did not participate.

OPINION

MOFFAT, Justice.

This is an action to recover damages for alleged injury based upon claimed negligence. The plaintiff, while in the employ of the defendant during December, 1928, claims to have been injured. The defendant was engaged in the retail furniture business in Salt Lake City. It is conceded that he regularly employed more than three men and was, therefore, subject to the provisions of the Workmen's Compensation Act (R. S. 1933, 42-1-1 et seq.). The defendant was not carrying compensation insurance as required by the act. Neither had he qualified as a self-insurer. Plaintiff alleges that on December 22, 1928, while he was in the course of his employment he stepped into an elevator shaft in the rear of defendant's premises, fell into the pit, and was injured. The elevator was located at the rear of the building. There were two doors making the elevator accessible, one from the north and the other from the south or the rear. There was a platform at the rear accessible from the rear door, the platform being about a foot from the level of the main floor of the building. The south or outside door was of the elevator or lift type. It was made of metal and slid down below the platform to permit entrance to the elevator from that side. When raised, the door closed the elevator from the outside and served to prevent possible fire from the outside getting into the elevator shaft. This door could be raised or lowered either from the platform or from the elevator if the elevator were brought to the level of the platform outside. In such position, the elevator floor would be one foot below the floor of the store.

This elevator served the defendant in moving furniture up to and down from the balcony to the ground floor of the premises used by defendant. It was also used by other occupants of the building above defendant's store over whom defendant had no control. On the evening of December 22d, after dark, a Mr. Murray and his wife went out of a door east of the elevator and called to plaintiff to close the door after them. Plaintiff closed the door from the inside and then went to the location of the elevator expecting to stand in the elevator and pull up the fire door at the rear. The elevator at that moment was at one of the floors above. It was dark and plaintiff did not notice that the elevator cage was not at the floor level and stepped into the shaft and fell about fifteen feet into the pit, resulting in injuries to his hips, arms, and feet. After recovery, plaintiff returned again to defendant's employ. He continued in this employment until discharged by defendant on August 27, 1932. Four days after his discharge and three years and eight months after his accident, plaintiff commenced this action. No claim is made for loss of time, medical or hospital bills, or impaired earning capacity.

This statement of facts is made for the purpose of indicating the background of the action, and although numerous errors are assigned, the matter reposes itself in two points only: (1) The question of the statute of limitations; and (2) errors assigned in certain of the instructions of the court. The question of the statute of limitations was raised both by demurrer to the complaint, which was overruled, and by answer. Defendant denied negligence in the premises, denied he had any duty with respect to the elevator, set up that other tenants of the building used the elevator and had moved it to the floor above, and alleged that plaintiff was injured by his own negligence and lack of care and that his injury was not incurred in the scope of his employment. Trial by jury resulted in a verdict for plaintiff, and defendant prosecutes this appeal.

Appellant assails the action of the trial court in overruling his demurrer and his plea in his answer that the action is barred by the statute of limitations. Appellant's position is that the liability is one created by statute and comes within the one-year limitation of subdivision (1) of section 6468, Comp. Laws Utah 1917, now section 104-2-26, subd. 1, R. S. Utah 1933. Respondent contends that the provisions of section 6474, Comp. Laws Utah 1917, now section 104-2-30, R. S. 1933, allowing a period of four years in which to bring an action for personal injury, apply, and the action being brought within that period is not barred. This raises the question as to whether the Workmen's Compensation Act includes within its provisions all cases in which the relation of master and servant or employer and employe exists and where more than three persons are regularly employed, without reference to the exceptions as to agricultural and domestic pursuits.

This court held in the case of Utah Consol. Min. Co. v. Industrial Comm., 57 Utah 279, 194 P. 657, 16 A. L. R. 458, that a proceeding under the Workmen's Compensation Act involves a liability created by statute and must be brought within one year. This decision has been consistently followed. That such is the position of the court, and that the act applies where the employer carries insurance, is definitely settled. The question here, however, is: Is such an employer who comes within the requirements and conditions of the act, except that he fails to carry insurance or qualify as a self-insurer, still within the terms of the statute? Or, put more broadly, has the Workmen's Compensation Act pre-empted the whole field where the relation of master and servant or employer and employe exists, except the specific exceptions relating to agricultural employment and domestic servants? It is contended that if an employer does not carry compensation insurance, he and his employes are denied the advantages provided by the statute and relieved from the liabilities of the act, and that they remain under their common-law rights and liabilities. That the liability of the employer for an injury to a servant, aside from the Workmen's Compensation Act, is not one created by statute, and that the one-year statute of limitations does not apply if it is a common-law action, needs no further discussion. The real question, therefore, is: Is the defendant within or without the exclusive provisions of the Workmen's Compensation Act? Section 42-1-40, R. S. 1933, formerly section 3110, Comp. Laws Utah 1917, provides who shall constitute employers subject to the provisions of the title in part as follows:

"(2) Every person, firm and private corporation, including every public utility, having in service three or more workmen or operatives regularly employed in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written, except agricultural laborers and domestic servants; provided, that employers who have in service less than three employees, and employers of agricultural laborers and domestic servants, shall have the right to come under the terms of this title by complying with the provisions thereof and the rules and regulations of the commission."

It is also provided by section 42-1-54, R. S. 1933, formerly section 3129, Comp. Laws 1917, relating to employers who shall fail to comply with the provision of section 42-1-44, R. S. 1933, as follows:

"Employers who shall fail to comply with the provisions of section 42-1-44 [relating to the requirement that employers carry insurance or qualify as self-insurers] shall not be entitled to the benefit of this title during the period of noncompliance, but shall be liable in a civil action to their employees for damages suffered by reason of personal injuries arising out of or in the course of employment caused by the wrongful act, neglect or default of the employer or any of the employer's officers, agents or employees, and also to the dependents or personal representatives of such employees where death results from such injuries. In any such action the defendant shall not avail himself of any of the following defenses: the defense of the fellow-servant rule, the defense of assumption of risk, or the defense of contributory negligence. Proof of the injury shall constitute prima facie evidence of negligence on the part of the employer and the burden shall be upon the employer to show freedom from negligence resulting in such injury. And such employers shall also be subject to the provisions of the section next succeeding."

The next succeeding section referred to is section 42-1-55, R. S. 1933, formerly section 3130, Comp. Laws 1917, and it provides:

"Any employee, whose employer has failed to comply with the provisions of section 42-1-44, who has been injured by accident arising out of or in the course of his employment wheresoever such injury occurred, if the same was not purposely self-inflicted, or his dependents in case death has ensued, may, in lieu of proceeding against his employer by civil action in the courts as provided in the last preceding section, file his application with the commission for compensation in accordance with the terms of this title, and the commission shall hear and determine such application for compensation as in other cases; and the amount of compensation which the commission...