Southern Pac. Co. v. Industrial Commission of Utah

• Decision Date: 27 September 1927
• Docket Number: 4552
• Citation: 264 P. 965,71 Utah 248
• Court: Utah Supreme Court
• Parties: SOUTHERN PAC. CO. v. INDUSTRIAL COMMISSION OF UTAH et al

264 P. 965

71 Utah 248

SOUTHERN PAC. CO. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4552

Supreme Court of Utah

September 27, 1927

Rehearing Denied March 9, 1928.

Proceeding under the Workmen's Compensation Act by Joseph Surrage opposed by the Southern Pacific Company, employer. The commission awarded compensation, and the employer institutes original proceedings to review such award.

AWARD OF COMMISSION APPROVED.

Bagley Judd & Ray, of Salt Lake City, for plaintiff.

Harvey H. Cluff, Atty. Gen., J. Robt. Robinson, Asst. Atty. Gen and Stuart P. Dobbs, of Ogden, for defendants.

STRAUP, J. THURMAN, C. J., and CHERRY, HANSEN, and GIDEON, JJ., concur.

OPINION

STRAUP, J.

Joseph Surrage, alleging that he was an employee of the Southern Pacific Company (operating a railroad), and sustained injuries in the course of his employment, applied to the Industrial Commission for an award of compensation to be paid him by the company in pursuance of our Workmen's Compensation Act (Comp. Laws 1917, §§ 3061-3165). The company resisted the application on the grounds (1) that the applicant was not in its employ, but was an independent contractor, and (2) though it be held that the applicant was its employee, his injury resulted while he was employed in interstate commerce in which the company was engaged, and thus not subject to the act. On a hearing the commission found the issues in favor of the applicant, and made an award, which, by this proceeding, is sought to be reviewed by us on the company's application. On the record presented for review it makes the same contentions here; that is, that the record, without substantial dispute, shows the truth of its contentions, and that hence the award is unsupported by substantial evidence; and, if not, on the facts as found on the record is against law.

The company was a railroad common carrier engaged in interstate commerce. Surrage was engaged to cut noxious weeds with his own team and a mower on a section of the company's right of way in Weber county. There is evidence to show that he was orally employed by the company's foreman of the section to cut the weeds at a daily wage of $ 6.50, he to furnish, as he did, his own team and mower; that he received instructions from the foreman as to the particular place to work; that his work was extended as in the judgment of the foreman the weed cutting along the right of way was needed; that he was subject to discharge at the will or direction of the foreman; that the foreman or roadmaster of the company directed Surrage where to stard cutting, and when to change to other places of work; that a separate pay roll was kept for him, and, when he was injured, the foreman employed another to finish the work. The company also employed another, a section hand, to cut weeds with a scythe in corners and near objects which could not be cut with a mower, and who also was subject to the orders and directions of the foreman and not of Surrage.

The claim made that Surrage was an independent contractor rests chiefly on evidence that he was not paid until the work was completed, at which time he was paid in a lump sum by check from the office of the auditor of the company, furnished his own team and mower, was not examined by the railroad medical department, did not get pay when he did not work, his term of employment indefinite, and that no one told him how to operate his team and mower; the foreman testifying he thought Surrage could do that without direction. On the record we have no difficulty in holding that there is ample evidence to justify the finding that Surrage was an employee of the company, and not an independent contractor.

The second proposition, which is the company's chief contention, is not so easily disposed of. In such respect, the claim is made that cutting weeds on the company's right of way was directly related to interstate commerce, in which the company was engaged, or so closely connected therewith as to be a part of it, analogous to making repairs of a track or roadbed, bridges, culverts, and other instrumentalities used by a carrier in carrying on interstate commerce.

With respect to the conditions and the manner of the injury, the commission, among other things, found:

"That the weeds along said right of way at the time said injury took place, and while said applicant was cutting weeds including the following noxious weeds, to wit, burdock, cockel bur, wild morning glory and bull thistle, which weeds had theretofore, pursuant to the provisions of chapter 66 of the Sessions Laws of Utah for 1925, been declared by regulations made by the state board of agriculture to be noxious weeds, and the cutting of same directed by the state board of agriculture, same having been done prior to the time of cutting of said weeds by said applicant. That the cutting of said weeds was a usual and ordinary method of controlling noxious weeds in accordance with said statute.

"That at the time and place the said Southern Pacific Company was operating both intrastate and interstate trains over the tracks upon said right of way, which right of way was a part of the main line of said Southern Pacific Company. That along said right of way, within the section in which said weeds were cut by said applicant, stood company equipment, such as depot, section house, beet loading dump, and cannery loading equipment, the latter two being used in intrastate traffic only. That it was the practice of the company to have the weeds cut, and, when dry, have the same raked and burned. That along said right of way within the said section were bridges, telephone poles, signal device systems, and a telegraph system, all subject to injury in case weeds along the section were permitted to become dry and catch on fire. That along said right of way were numerous farms cultivated by various persons upon which were growing crops such as grain, hay, and similar crops, likely to be ignited and burn, causing damage for which the railroad company would become liable if a fire should occur upon said right of way from sparks emitted by locomotives of said railroad or otherwise negligently caused in the operation of said railroad. That said road used oil-burning locomotives of a kind and character less likely to cause ignition of weeds on the right of way which had become dry than coal-burning locomotives, the main fire hazard being from matches or lighted cigars thrown from the trains operated by said railroad over its said track by the passengers or employees thereof. That, in connection with cutting weeds along said right of way at the time of injury of the said applicant, and at all times when he was so employed by said railroad company, he cut with his mower only that part of the right of way which was open and free from obstruction, the weeds immediately adjacent to buildings, fences, telephone poles, bridges, tracks, and other property of said railroad company on said right of way, if any weeds were immediately adjacent thereto requiring cutting, being cut by a member of the section crew for that section of the right of way who was on the pay roll of said company as a regular member of said crew, and who cut the same by hand.

"That at the time said applicant was injured, he was not engaged in work upon said right of way, but was...