Stricker v. Industrial Commission of Utah

• Decision Date: 18 March 1920
• Docket Number: 3477
• Court: Utah Supreme Court
• Parties: STRICKER et al. v. INDUSTRIAL COMMISSION OF UTAH et al

188 P. 849

55 Utah 603

STRICKER et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 3477

Supreme Court of Utah

March 18, 1920

Application by Ida Stricker and others under Workmen's Compensation Act for compensation for the death of Phillip Stricker against the Amalgamated Sugar Company, employer.

The Industrial Commission denied the compensation, and applicants by original proceedings seek annulment of that decision.

DECISION OF THE INDUSTRIAL COMMISSION AFFIRMED.

Marioneaux & Beck, of Salt Lake City, for plaintiff.

Dan B Shields, Atty. Gen., and J. H. Wolfe, O. C. Dalby, and H. Van Dam, Jr., Asst. Attys. Gen., for defendant.

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

OPINION

WEBER, J.

On October 10, 1917, while working in a limestone quarry owned by the Amalgamated Sugar Company, one of the defendants, Phillip Stricker received fatal injuries by reason of the premature explosion of a drill hole loaded with blasting powder. His widow and two minor children made application for compensation, which was denied by the Industrial Commission. The applicants now ask this court to review and annul the decision and order of the Industrial Commission refusing compensation and holding that Phillip Stricker was an independent contractor, and not an employe, at the time of his death.

On January 29, 1917, a written agreement was entered into between A. E. Fuhriman and Henry Theurer, two of the defendants herein, and the Amalgamated Sugar Company. The stipulations of that agreement, so far as material here, are:

Fuhriman and Theurer (hereinafter referred to as "contractors") agreed to "properly quarry, break, haul, and deliver and unload at such place or places upon the sugar company's factory grounds, * * * as the said sugar company or its representatives may designate and direct, all the lime rock which the said sugar company shall desire for its use in its sugar factories at Logan and Lewiston, Utah, during the campaign of 1917," and that said rock should be quarried from such portions of the company's rock quarry as the said company might from time to time direct. "The said rock must be broken into pieces of as near uniform size as possible, consisting of cubes measuring not less than two inches nor more than four inches; and if said first party shall deliver rock of any different size, or rock quarried from any other portions of said quarry or ledges than where directed by the said sugar company, such rock will not be accepted nor paid for by said sugar company."

Another provision is as follows:

"The said quarrymen agree to properly quarry, break, haul and deliver such rock as fast and in such quantities as the sugar company may desire; all of said rock to be delivered between the 1st day of May, 1917, and the 1st day of December, 1917; said rock to be weighed at the designated place of delivery, and receipts issued therefor by the weighmaster. Such weights shall become final and conclusive and binding upon both of the parties hereto."

It was also agreed that, if the contractors at any time refused or neglected to supply properly skilled workmen or laborers, or tools, or failed in any respect to prosecute the work with promptness and diligence, or failed in the performance of any of the agreements, the sugar company might, at its option, terminate the contract and have immediate access to the quarry, together with the right to employ and use the necessary workmen, laborers, teams, or tools to fully carry out the provisions of the agreement; the cost and expenses of such operation and employment to be chargeable to the contractors. Another stipulation reads as follows:

"* * * The sugar company assumes no responsibility whatever in connection with the work herein contracted for, or in connection with the operation of the quarry aforesaid, but that the said quarrymen assume all such responsibility, whether for wages and moneys due to workmen, laborers, teamsters, or other persons, for performing the work herein contracted for, or whether damages, of whatever kind or nature, caused by or arising from or incidental to the performance of such work."

By another provision of the contract the sugar company agreed to pay to the contractors one dollar and sixty cents for each ton of rock delivered at the company's factory at Logan, Utah, and one dollar and seventy cents for each ton of rock so delivered at the Providence spur track of the Ogden, Logan & Idaho Railway Company and accepted by the said sugar company, payments to be made on the fifteenth of each month for the rock delivered during the preceding month.

On June 18, 1917, Phillip Stricker, the deceased, and William Oliverson entered into a written agreement with said Fuhriman and Theurer (above referred to as "contractors" and as "quarrymen") in which Stricker and Oliverson agreed to perform all the labor necessary in drilling holes, loading and shooting same, and all other labor necessary or incident to shooting down 20,000 tons of lime rock at the sugar company quarry. Stricker and Oliverson agreed to drill such number of holes as might be necessary in the prosecution of said work, and to do it in a workmanlike manner, and to do all work contemplated by the contract for the sum of one dollar and sixty cents per foot of depth of each of the holes drilled for the shooting of the rock, provided that no holes should be drilled to a less depth than fifteen feet nor to a greater depth than twenty-four feet. Payments for the work done were to be made on the fifteenth of each month for the work completed during the preceding month. The contractors, Fuhriman and Theurer, were to pay for all powder used in the prosecution of the work at the cost price of the same and to furnish necessary drills for use in carrying on the work. It was further agreed that Stricker and Oliverson should act upon their own judgment as to the manner of prosecuting the work, and they were to be in all respects free from any control whatsoever on the part of Fuhriman and Theurer. Stricker and Oliverson were to assume all risks of accident to them or their employes from the conditions obtaining in the quarry, in drilling the holes or loading or shooting same, and generally as to all things connected with the prosecution of the work contemplated by the contract. They agreed to hold the contractors, Fuhriman and Theurer, harmless from all claims or demands whatsoever because of or on account of injury occasioned to either persons or property in the prosecution of the work.

Oliverson was a witness before the commission, and his undisputed testimony removes any doubt which may appear from the contract as to the capacity in which he and Stricker were working. He testified that he and Stricker hired and needed assistants, took complete charge of them, paid their wages, and that Fuhriman and Theurer had nothing to do with either of them or the men they employed. Oliverson and Stricker divided the profits, which amounted to about $ 180 per month each. They received their board in addition to the pay named in the contract. No suggestions were ever made to them by anybody as to when they should drill. They did their own work in the way they wanted to. If the holes were not fifteen feet deep, they received no pay for them. Their tools, except a hammer, were furnished by the contractors. They were not told when to work or anything about it--when or where to drill nor how to drill. Neither of the contractors at any time exercised any control over them as to the manner of doing the work. The witness testified that he and Stricker at all times did as they saw fit without any interference by any one. It appears from the testimony that all the employes of Fuhriman and Theurer, about six or eight, not including the teamsters, were insured in the state insurance fund except Stricker and Oliverson, and the latter were not insured because they were thought to be, and treated as, independent contractors. The agreement was to board Stricker and Oliverson, though that was not in the written contract.

Mrs Stricker testified that her husband was to receive fifty cents per day extra; that she had been so informed by Theurer; but that was denied by Theurer. It is claimed by the applicants that under the contract of Fuhriman and Theurer with the sugar company they were employes of the sugar...