Utah Rapid Transit Co. v. Industrial Commission of Utah

• Decision Date: 19 December 1921
• Docket Number: 3707
• Citation: 59 Utah 232,204 P. 87
• Court: Utah Supreme Court
• Parties: UTAH RAPID TRANSIT CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

204 P. 87

59 Utah 232

UTAH RAPID TRANSIT CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 3707

Supreme Court of Utah

December 19, 1921

Proceeding under the Industrial Act by the Utah Rapid Transit Company, as employer, and the London Guaranty & Accident Company, Limited, as insurer, against E. E. Gibbons, as employe, to have determined whether the employe was entitled to compensation under the Industrial Act or to recover under the federal Employers' Liability Act. After a finding by the Commission that the employe was engaged in interstate commerce, the employer and insurance carrier apply for writ of review.

Decision of the Commission SET ASIDE, AND CAUSE REMANDED with directions that the Commission take jurisdiction.

Booth Lee, Badger & Rich, of Salt Lake City, and De Arni, Howell, Stine & Gwilliam, of Ogden, for plaintiffs.

Harvey H. Cluff, Atty. Gen., and Marioneaux & Beck, of Salt Lake City, for defendants.

FRICK, J. CORFMAN, C. J., and WEBER and THURMAN, JJ., concur. GIDEON, J., being disqualified, did not participate in the disposition of this cause.

OPINION

FRICK, J.

The plaintiffs applied for a writ of review directed to the Industrial Commission of Utah, hereinafter called Commission. A writ was duly issued by this court, requiring the Commission to certify up its proceedings in the matter hereinafter stated, which was done.

No questions are raised with regard to the pleadings.

The defendant E. E. Gibbons, for reasons hereinafter appearing, was made a party to these proceedings, and is represented by his counsel Messrs. Marioneaux & Beck. While the Commission is represented by the Attorney General, no argument in its behalf was made to this court at the hearing, but the cause was submitted upon the argument presented by counsel for Mr. Gibbons.

The undisputed facts out of which this proceeding has arisen, briefly stated, are as follows:

On the 17th day of February, 1920, E. E. Gibbons was employed by the plaintiff Utah Rapid Transit Company, hereinafter, for convenience, called Transit Company, and by the Utah-Idaho Central Railway Company, hereinafter, for convenience designated Central Company, and on said date was injured in the course of his employment, as will hereinafter more fully appear. The Transit Company owns and operates a local street railway system in Ogden, Utah, with short branch lines running to several of the smaller towns near Ogden. The Central Company owns and operates an electric railway system known as the Interurban. The interurban system runs northerly from Ogden, Utah, to Preston, Idaho, a small town located a few miles beyond the northerly boundary line of the state of Utah, and in its course passes through a number of Utah towns. While the two systems are separate corporations, they, nevertheless, are managed and officered by practically the same individuals. The two companies maintain a joint repair shop at Ogden in which the necessary repairs to cars and other appliances used in the operation of the two systems are made. At the time of his injury, and for several years prior thereto, E. E. Gibbons was employed as a carpenter in such repair shop. He was employed and paid by the hour by both companies as follows: If any repairs or other work in his line were necessary to be done for either company he would be directed what to do by the man in charge of the shop. In doing the work he would note the character and the time he worked upon a slip or card prepared for that purpose, indicating thereon for which company the work was done and the time he worked, and would then hand the card or slip to the joint auditor of the two companies, and the amount that he had thus earned would then be charged to the company for which he had worked, as indicated upon the card or slip aforesaid. He might thus be, and frequently was employed for both companies on the same day. The Central Company, however, issued or countersigned all the pay checks. The Transit Company was then charged and paid for all the work done for it upon its cars and equipment, and the Central Company was charged in the same manner. The Transit Company's business was exclusively intrastate, while the Central Company did both intrastate and interstate business. At the time of the accident Gibbons was engaged in repairing the roof of one of the cars owned and used by the Central Company. The car in question was what is called a motorcar and at times was used for intrastate business on the Transit Company's local lines, and at other times was use for interstate business on the interurban line. On the morning of the day the repairs were made the car was returned to the shop as an "extra service car"; that is, it was then an extra car out of actual service, but was to be placed back into service again as soon as needed. It is not made to appear just what service the car was engaged in on that day, or the day preceding, when it was returned to the shop. It does appear, however, without contradiction, that after it was placed in service again after the repairs were made it was used in local or intrastate business. The evidence also shows that, while it was not actually necessary to make the repairs on the roof of the car at the particular time, they were made, however, for the reason that the car at that time was an "extra car" and because it was convenient to make the repairs while it was out of service. The car was accordingly run into the repair shop and Mr. Gibbons was directed to repair the same as before stated. He placed a ladder against the side of the car so that he could go to the roof thereof, and while he was standing on the ladder the foot of the ladder was standing on or near another track, and while it was leaning against the side of the car being repaired one of the Transit Company's cars used in the street railway service, and which was exclusively used in intrastate business, was operated against the foot of the ladder, which caused it to fall, and Mr. Gibbons was precipitated to the floor of the shop, by reason of which his left knee joint was seriously injured. While Mr. Gibbons at times had done service outside of the shop, he, nevertheless, for more than a year prior to the time of the injury, had not been out of the shop, but had continuously worked therein for both companies in the manner before stated.

According to the undisputed evidence, therefore, the car that caused the ladder to fall was exclusively used by the Transit Company in intrastate business, while the car upon which Mr. Gibbons was working was from time to time used both in intrastate and in interstate commerce, but at the time it was being repaired was an "extra service car," which thereafter might be placed in either intrastate or interstate service according as it might be needed, but as a matter of fact immediately after it was repaired it was used in intrastate business as before stated. The evidence is also without dispute that for about eight months from and after the injury the Transit Company paid compensation to Mr. Gibbons for the injury at the rate of $ 16 per week, the highest rate allowed under the Industrial Act (Comp. Laws 1917, § 3061 et seq.); that he made no application to the Commission for compensation, but the same was, nevertheless, paid and received under the Industrial Act; that after eight months had elapsed some misunderstanding arose between Mr. Gibbons and the Transit Company and its insurance carrier, the London Guaranty & Accident Co., Limited, respecting the character of the receipts he should sign. Not being able to adjust the misunderstanding an application was made to the Commission to determine the question of whether Mr. Gibbons was required to receive compensation under the Industrial Act, or whether he could proceed under the federal Employers' Liability Act against the Central Company.

The Commission in effect found and decided that the Central...