Twin Peaks Canning Co. v. Industrial Commission of Utah

Decision Date10 March 1921
Docket Number3615
Citation57 Utah 589,196 P. 853
CourtUtah Supreme Court
PartiesTWIN PEAKS CANNING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

Original application by the Twin Peaks Canning Company and the London Guarantee & Accident Company, Limited, for a writ of review to the Industrial Commission to review an award under the Workmen's Compensation Act in favor of Edith Bohling on account of the death of her minor son, Charles Brandley.

AWARD AFFIRMED.

Booth Lee, Badger & Rich, of Salt Lake City, for plaintiffs.

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

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

OPINION

FRICK, J.

This is an original application to this court for a writ of review. The application is made pursuant to the provisions of chapter 100, Laws Utah 1917, as the same is carried into Comp. Laws Utah 1917, §§ 3061 to 3165, inclusive, and as amended by chapter 63, Laws Utah 1919.

One Edith Bohling made application in due time and form to the Industrial Commission of Utah hereinafter called Commission, to obtain compensation for the death of her son, one Charles Brandley, who was 14 years and 10 months of age at the time of his death. The Commission awarded the mother compensation as a partial dependent in the sum of $ 7.71 per week for a period of 312 weeks, and, in addition thereto, the sum of $ 150 for funeral expenses. The award was based upon the decision and findings of the Commission. The decision reads as follows:

"It appears that Charles Brandley was killed in an accident on the 11th day of August, 1920, at Murray, Utah. Decedent had been employed by the defendant Twin Peaks Canning Company for several weeks, his work consisting of caring for the cans in the capping department on the main floor. About the hour of 11:30 a. m. the machine had stopped, and for some purpose the deceased left his place of work, and, using the freight elevator, ascended to the next floor, and, in watching another boy descend in a like manner, playfully shut off the power of the elevator, causing the elevator to stop between the first and second floors. The decedent climbed to the second floor and turned the power on. The elevator ascended at once and crushed the decedent. It is alleged by the applicant, Edith Bohling, that she is the mother of the decedent by a former marriage; that subsequently she was married to Joseph Bohling and maintained a home in which the decedent had lived for the past seven years; that all earnings of the decedent, both in the past and at the time of said accident, were given to the applicant and used for herself and family's support."

While the findings of fact in substance follow the decision, yet the findings are very general, merely indicating when and where the accident occurred, the average weekly wage earned by the deceased, and that the applicant was "partially dependent upon the deceased." In the so-called conclusions of law, after fixing the amount to be paid, etc., the Commission further says:

"It appears that the employes were cautioned against using the elevator except under condition which the work demanded and then only by boys whose work required it. However, this rule does not appear to have been enforced; also that not only the decedent, but other boys, used the elevator to go to the second floor; also that they left their post when the machines were stopped during working hours. This practice was indulged in to such an extent as to suggest common practice. The Commission concludes that the decedent was within the course of his employment at the time of the accident, although he may not have been doing that which his employment required, but that which his employment permitted and allowed. The question of whether or not the decedent had business in going to the second floor is not now a matter that can be definitely determined. It does appear, however, that he had made the trip before for the purpose of talking to a friend; also that he sometimes ate his lunch on said floor."

It is not easy to understand why the foregoing statements are incorporated into the so-called "conclusions" of the Commission. It is, however, immaterial what the statements or findings of the Commission are called, and we have inserted them here only for the purpose of showing what induced the Commission to make the award in this case.

The facts, in substance, are as follows:

Charles Brandley, hereinafter called the deceased, entered the employ of the Twin Peaks Canning Company, hereinafter called canning company, on the 21st day of July, 1920. The canning company operated a canning establishment composed of a two-story building, and the deceased and his "chum" Alvin Mitchell were working on the first floor while several other boys were working on the second floor of the establishment. There were perhaps a dozen or fifteen boys engaged in the establishment. It was the duty of the deceased and Mitchell to "catch" the cans after they were filled with vegetables in the canning room on the second floor when the same were passed down to them by gravity by means of what is called a "chute" and to place the cans at a place indicated for them on the first floor. There was an electric elevator connecting the two floors which was used to take the empty cans as they arrived at the canning establishment to the second floor. Neither the deceased nor Mitchell was required to perform any duties whatever on the second floor, nor was either required to go there for any purpose. It seems that the cans went through some sort of a machine on the second floor, and that was also the case when they reached the first floor, and the duties of the deceased and Mitchell were confined to the machine on the first floor. The cans, however, would not be placed in the chute in a continuous stream, so that there were intervals of rest, or intermissions, at which times the machines were not in operation. The deceased and Mitchell were, however, supposed to remain at their posts so that they would be prepared to take up their work at any time, and as soon as the machines commenced operating after the intermissions, which might occur at any moment. The evidence is to the effect that when the machines were at rest both the deceased and Mitchell, and especially the deceased, would frequently, by means of the elevator, ascend from the first to the second floor. The deceased sometimes during the noon hour would go to the second floor by means of the elevator to eat his lunch which he brought from home. One of the boys testified that the deceased went up to the second floor on the elevator "almost daily" between the 21st day of July, 1920, the day the deceased commenced work, and the 11th day of August following, when he was killed. On the 11th day of August aforesaid the deceased and Mitchell were working on the first floor as before stated, when, at about 11:30 a. m., the machines stopped, and the deceased, by means of the elevator, went from the first to the second floor, operating the elevator himself. After the deceased had reached the second floor, and after the elevator had been returned in a manner the testimony does not make very clear to the first floor, Mitchell also went into the elevator and adjusted the switch so as to start the elevator upwards. It seems there was one switch on the elevator by means of which the power could be turned on to operate the elevator, and that there was also another switch on the second floor by means of which the power could be turned either on or off at that place. When Mitchell thus attempted to go from the first to the second floor, and when he had reached a point "a little more than halfway up," between the two floors, the deceased, in attempting a practical joke or prank, disengaged the switch on the second floor and shut off the power from the elevator, leaving Mitchell in it midway between the two floors. Mitchell, it seems, did not disengage the switch on the elevator, but left it so that if the power were turned on the elevator would continue upwards. He, however, climbed up from the elevator where it was stopped by the deceased to the second floor. While the deceased and Mitchell were on the second floor they were "joking, talking, and laughing," with the other boys who were working on that floor. There was an elevator gate on the second floor which worked automatically, so that when the elevator came up the gate would lift upwards out of the way of those using the elevator and when the elevator went down the gate would slip into place to prevent any one from walking or falling into the elevator shaft. When the deceased had thus stopped the elevator midway between the two floors the gate was in place. The visit of the boys on the second floor had continued only for a short time on the day in question when there was some indication that the machines would go into action, and both Mitchell and the deceased were anxious to get back to their machines on the first floor. The deceased thus went to the elevator and leaned over or climbed on to the gate aforesaid and adjusted the switch on the second floor so as to let on the power. He, it seems, did this without knowing or realizing that Mitchell had left the switch in the elevator connected when he climbed out of it to the second floor. As soon, therefore, as the deceased connected the switch on the second floor, and as he was leaning over or was on top of the gate, the elevator commenced to ascend, and the deceased was carried up on the gate against the beam, which dislocated his neck causing almost instant death. The accident thus occurred as the result of what in the books is ordinarily denominated as practical joking, horseplay, or pranks.

There is evidence in the record that...

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