Rockefeller v. Industrial Commission of Utah

• Decision Date: 29 April 1921
• Docket Number: 3631
• Citation: 197 P. 1038,58 Utah 124
• Court: Utah Supreme Court
• Parties: ROCKEFELLER v. INDUSTRIAL COMMISSION OF UTAH

197 P. 1038

58 Utah 124

ROCKEFELLER v. INDUSTRIAL COMMISSION OF UTAH

No. 3631

Supreme Court of Utah

April 29, 1921

Application by Jesse Y. Rockefeller, as employer, against the Industrial Commission of Utah to annul an order entered by the Commission requiring the employer to pay Thelma A. Wilson compensation for the death of Darrell E. Wilson, employe.

Award of the Commission ANNULLED.

W. H Reeder, Jr., and A. W. Agee, both of Ogden, for plaintiff.

Harvey Cluff, Atty Gen., and John R. Robinson, Asst. Atty. Gen., for defendant.

FRICK J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ concur.

OPINION

FRICK, J.

The plaintiff made application to this court in which he asks us to annul a certain order entered against him by the Industrial Commission of Utah hereinafter called Commission. The Commission, upon the application of one Thelma A. Wilson, hereinafter designated applicant, made an order requiring plaintiff to pay said applicant, widow of one Darrel E. Wilson, deceased, the sum of $ 3,225 in weekly installments of $ 10.34 for 312 weeks, and, in addition thereto, to pay certain hospital and funeral expenses, including doctors' fees. The applicant alleged, and the Commission found, that the death of said Darrell E. Wilson occurred while he was an employe of the plaintiff, that plaintiff's business was governed by what hereinafter will be designated as the Industrial Act of this state, and that his death was caused by an accident which arose out of and in the course of said employment. The plaintiff contends that there is no evidence in support of the finding that the deceased was an employe of plaintiff or the finding that his business was governed by the Industrial Act. (Comp. Laws 1917, §§ 3061-3165). He further contends that the deceased was not his employe at the time of the accident, and that plaintiff's business, as it was conducted, does not come within the provisions of the Industrial Act. Plaintiff therefore insists that the Commission exceeded its power or jurisdiction in making the order and award aforesaid.

The principal, indeed the controlling question that is presented by this proceeding is whether the deceased, at the time of the accident, was an employe of the plaintiff, and whether the latter's business was governed by the provisions of the Industrial Act.

Our statute, Comp. Laws Utah 1917, § 3110, subd. 2, as amended by chapter 63, Laws Utah 1919, reads as follows:

"Every person, firm and private corporation, including every public utility, that has 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: * * * Provided, that employers who have in service less than three employes, * * * shall have the right to come under the terms of this title by complying with the provisions thereof and all rules and regulations of the Commission."

The specific contentions of plaintiff's counsel are: (1) That there was no contract of hire or employment either express or implied, existing between plaintiff and deceased; (2) that the plaintiff did not have "three or more workmen regularly employed"; and (3) that he had not elected to "come under the terms" of the Industrial Act.

The holdings of the courts are unanimous that under statutes like ours it is necessary: (a) That the business in which the accident occurred is within the Industrial Act; and (b) that the relationship of employer and employe exists in the sense of master and servant, and that such relationship be evidenced by a contract of employment either express or implied. The law in that regard is well and clearly stated in the recent case of Kackel v. Serviss, 180 A.D. 54, 167 N.Y.S. 348. In referring to the necessity of a subsisting contract of employment the court in that case, at page 55 of 180 A.D., and at page 350 of 167 N.Y.S., says:

"The existence of the fact of a contract is essential to the operation of the Workmen's Compensation Law; without such a contract the statute has no operation whatever, and with it it deals only with a specified body of workers, and no attempt is made, so far as we discover, to make a different rule for determining what is a contract of employment between persons within or without the special groups. In other words, the question whether there is a contract of employment is jurisdictional, and due process of law requires that this fact shall be determined judicially; that the rules which apply to contracts generally shall be applied in determining whether the contract which must underlie the operation of the Workmen's Compensation Law exists, and this is a question of law depending upon established facts."

In view of the terms of our Industrial Act that in order to bring an employer within the statute he must have three or more workmen regularly employed under a contract of hire express or implied, the foregoing statement seems entirely sound. It is also sound doctrine that whether an alleged agreement amounts to a contract of employment may, under certain circumstances, be a mixed question of law and fact, and under different circumstances may be purely a question of law. If the whole agreement respecting the alleged employment is in writing, the question of whether it constitutes a contract of hire within the provisions of the Industrial Act is purely a question of law. If, upon the other hand, it is not so evidenced and the agreement rests in parol, or partly in parol, or is to be implied or inferred from the facts and circumstances and what was said between the parties, then the jury must find the facts, and, when found, the court must, nevertheless, determine whether the facts so found constitute a contract. And, lastly, if, as in the case at bar, the facts respecting the employment are not in dispute, the question of whether the agreement constitutes a contract of employment is again one of law, and must be determined by the court as is the case in respect of written contracts of hire. These propositions, we think, will not be disputed, and hence no authorities need be cited in their support.

The first question that we shall consider, therefore, is: Was the deceased at the time of the accident which caused his death an employe of the plaintiff within the purview of the Industrial Act?

We shall not describe the accident and how it occurred, because that is wholly immaterial in view of the result we have arrived at.

According to the undisputed evidence, the plaintiff was doing business in Ogden City under the firm name and style of "84 Taxi Service." The undisputed evidence is also to the effect that one Ben Trobough owned an interest in the taxi service, and that the plaintiff was the manager. Both plaintiff and said Trobough would at times attend calls for taxi service. There were eight automobiles kept in the business, some large ones for large parties, and the others smaller cars. Besides plaintiff and Trobough, who was not always in attendance at the place of business, the plaintiff also had one man whom he called a regular employe and who was paid at the rate of $ 30 per week. It was the duty of the employe just mentioned to see that the automobiles which were used in the taxi service were kept in order and repair, and, in connection with that duty, he also at times attended to calls for taxi service. He, it appears, received no extra remuneration, however, when he attended to calls. Plaintiff had another man, a brother of the automobile repairer, who attended to the calls for taxi service as such calls were made by those desiring a taxi. The latter employe was not paid a fixed wage for this service, but received a commission of 25 per cent. of all that he obtained from the taxi service to which he gave his personal attention. This employe had the first right to all calls when he was at leisure; that is, if he was not otherwise engaged on a call, no one else had the right to answer a call as it was received at plaintiff's place of business if he desired to avail himself of it. As before stated, the plaintiff, Mr. Trobough when he was present, the car repairer when he was not otherwise engaged, and his brother, who received the 25 per cent. for his services, all attended calls when taxi service was required, but the 25 per cent. man had the first right to respond to any call as it came in. That, the evidence shows, was the manner in which plaintiff's business was conducted when the deceased applied to him for work. The only evidence respecting the arrangement between plaintiff and the deceased respecting the latter's employment comes from the plaintiff, and one of the other two men to whom we have referred who was present at the time the deceased applied to the plaintiff for work. In answer to the question: "What was the shift of Wilson on the night of the accident?" plaintiff answered:

"Well, Wilson never had any shift. He came when he wanted and went like that. He was just an extra man. Wilson asked me for a job and I told him that I couldn't put him on, that my business wouldn't require another man, and he asked me if he could drive extra if it happened to come that way, and I said, 'If it happens to come that way you are perfectly welcome to the call, but all I can pay you is just a commission.'"

The plaintiff, when asked if he ever authorized the deceased to work as he was doing on the night of the accident, said:

"No sir. He worked whenever he felt like it. He never had any set time at all. He came and went as he pleased."

Plaintiff's statements with regard to the arrangement he made with the deceased are fully corroborated by one of the other men who was present and are not disputed by any one. Then again the trip slips that...