Entwistle Co. v. Wilkins
626 P.2d 495
Utah
1981
Check Treatment

*1 We s find no error in trial court inter- Uniform Stock of the rigid application ap- pretation application or its gifts of evidence Act stock Transfer person- reaching rules of in more flexible of Utah law conclusion that propriate “the ascertaining whether or gifts law in the inter vivos to Rod were valid. property al P.2d at was consummated.” gift not a This based on evidence that [214 conclusion was McClements, also McClements convincing See only not meets the clear and 115.] (1963), in which 191 A.2d 411 Pa. virtually undisputed. but is standard corporate ownership on the the transfer Respondent. Affirmed. Costs of donative in- along with evidence books delivery requirement. tent satisfied MAUGHAN, HALL, J., and STEW- C. statutory unpersuaded We are OAKS, JJ., concur. ART and governing commercial stock requirements establishing in transactions conclusive gift involved in trans- parties rights manual

actions, we hold that therefore personally certificates of the stock

delivery to a valid prerequisite not a

to Rod was

gift. light of this case

Viewing the facts gifts, inter vivos requirements and Home ENTWISTLE COMPANY complete gifts of to Rod were find the stock Plaintiffs, Company, Insurance of decedent’s intention Evidence valid. the stock in made the owner of that Rod be Jerry M. WILKINS and Industrial lifetime was uncontro- Defendants. challenge do not Appellants verted. sufficiency of the evidence as donative No. 16879. court that finding trial intent nor Supreme of Utah. Court ownership recorded on change New were corporate books. certificates 26, 1981. Feb. The decedent did issued in Rod’s name. the stocks. exercise control over

thereafter contrary, voted the stock as its

On the Rod

legal and received cash stock owner

dividends. stock certificates were

The fact decedent, but not

kept in a safe to which

Rod, access not fatal to the had had completed gift. physi- The decedent possession belong- certificates

cal of stock family Ross mem-

ing a number of other no assertion or evidence

bers. There was possessory rights exerted control custody stock. His

over of that simply

Rod’s consistent with the stock family businesses of

practice within the certificates in a central

keeping the stock clearly as to owners

location identified envelopes Individual shares. carried names, numbers, certificate

owners’ stock represented by

and the number of shares

the certificates. *2 Holland,

J. Kent Lake City, Salt plaintiffs. Frischknecht, Manti,

Paul R. B. Robert Nelson, Hansen and V. Lake Frank Salt City, for defendants. *

CROCKETT, Justice: Plaintiffs Entwistle in- Company and its surer, Company, Home Insurance re- seek versal of an order Industrial Com- mission which awarded dis- ability compensation to the Jerry Wilkins caused suf- accidental arising fered driving him out of his plaintiff truck for Entwistle. Plaintiffs contend after the defend- ant’s injury subsequent and his termination Entwistle, of employment plaintiff he performed work “of same char- acter” of time for which he was awarded above and that the award should not been have made. Commission, as found defendant, old,

are: The who is years sold types trailers and other of recreational plaintiff vehicles for Entwistle. In that capacity, regularly throughout traveled contacting western states On dealers. April 15, 1977, Portland, his Oregon, near pickup truck and trailer he pulling were forced off the road and into a borrow pit by strong get To winds. back on highway, the defendant had to unhitch the so, balance, doing trailer. he lost his fell large over and struck his back some rocks. This severe caused his lower back and leg. some numbness in his left rest, up After a short he was able to hook trip. trailer and continue his The next day, the informed boss of the accident and indicated * CROCKETT, J., opinion prior wrote this to his retirement. 11, 1979, the the trailer was On December injured and

although he was trip order, complete noting the sales he would amended the October damaged, however, later, A week May as scheduled. 15 and the defend- between he was in so much his boss that and, thus, notified regular salary ant received return home earlier than he would *3 temporary disability not to was entitled scheduled. during Consequently, that time. benefits the appropriate the Commission made ad- 27 April home on The defendant arrived reducing the justment by award five his experience in and continued to Nevertheless, days. weeks and two he was exam- day, The next lower back. persisted contending that plaintiffs have who referred him to an ined a doctor temporary three no award at all for total disabili- specialist. For next orthopedic weeks, justified. physical underwent was ty May He to work on 20. therapy. returned argument is plaintiff’s The basis of that time, restricted his duties to At that he employment after defendant’s with by telephone. Neverthe- contacting dealers ended, performed he plaintiff Entwistle less, do that because when he was unable to camper for a shell identical work manufac- continuing pain, plaintiff Entwistle ter- turing owned and his company himself employment. minated his point during to evidence They son. applied disability for com- The defendant 1977, summer of the defendant made and, hearing, the pensation a matter after for trips company two or three sales that pan- panel.1 was to a medical The referred camper and delivered shells to dealers who has reported el that the defendant a condi- products. They say company’s sold intermittent lower back tion of conclusively shows that the defendant thigh left and and numbness in his foot gen- perform was able to the same aggravated he stands or sits when it he before the accident eral nature as had The periods panel’s of time. for extended thus, and, eligible tempo- was not for the temporar- is that the defendant compensation he rary total which received. 15, 1977, ily totally April disabled from un- 1, 1978, had January til that his condition temporary disability purpose The stabilized, a ten then there was for compensation provide is to income an body as percent permanent loss of function recuperation the time a result of the accident. until his condition has from question degree The as stabilized.3 to the administra- Based on above disability temporary may on a basis order, Oc- judge tive law entered dated to quite than that as be different 25, 1979, awarding the tober disability. The permanent or partial total disability compensation of temporary total encourage not indo law should not does 15, 1977, to per week from “$169 completely a man by requiring that lence 1, weeks, 1978, a of 37 3 January for total 2 eligible disability $6,325.43.” idle in order to remain days plain- The for the sum of We have heretofore stated compensation. order. tiffs filed a motion for review that that: important It to have in mind that the bemay ... workman a complain per- plaintiffs do not ten disability disabled if reason award, partial disability permanent cent injury, per- cannot from his resulting upon but their attack is form work award, problem disability injured, any when oth- performing dealing with. Bd., Comp. Appeals 35-1-77, v. Workmen’s 3. Granado Pursuant U.C.A.1953. (1968); Taylor v. Cal.Rptr. 445 P.2d Fund, Or.App. Ins. permanent State Accident defendant was also awarded (1979); Workmen’s Vetter v. Alaska P.2d 515 Comp. totaling partial Bd, Alaska, $3,515.30. capabilities quence. er work which man of his The fact that he did not remain may idle, be able to do or to to do.4 learn completely spent but some time in with helping the family business is not in- But common sense dictates that there is less consistent that his injury readjust reason to that a expect man will prevented temporarily perform- him from different tempo- usual ing his line of Significantly, work. rary than he perma- would on the to when the defendant was able to return nent basis. in any to work capacity, panel the medical As to the applied issue under consid reported as follows: here, eration “total does applicant was able return to abject helplessness mean a state of or that full-time work January 1978. The injured employee must be unable do members recognize of the medical *4 injured work The fact at all.6 that an this carrying man was signifi- out be may able to do some kinds of good personal part cant business a of the tasks wages to earn occasional does not . time .. and might by someone be con- preclude a necessarily finding of total dis sidered that time as able to ability perform to the work or follow the part-time. It is the of the occupation injured.7 in which he was His Panel, however, that he was substantially temporary disability may be found to be significant disabled for employment by total if no longer perform he can the duties party during period. another [All required occupation in his emphasis added.] prior injury.8 to his considering plaintiffs’ the upon attack The defendant testified be made, the apply principles order cause of he was experiencing, he which are established in such matters. The perform could not required of a extent and the employee’s duration of an that he salesman and was not trained for disability questions are of fact to be deter occupation. work in other The sales by mined the Commission.9 We review the trips he infrequent made were short light evidence most favorable to the duration, usually for only day; one findings,10 Commission’s and when there is thus, comparable to the extended trav support substantial evidence to the facts as eling regular employment. He said Commission, its will not order that his involvement family with the busi be disturbed.11 ness primarily consisted of visits to the Affirmed. No costs plant awarded. to with making assist payrolls out paying partic bills. He did not consider his

ipation STEWART, JJ., to of any HOWE, be conse- substantial concur. City Prescott, Arnold, 4. United Park Mines Co. v. v. Jones La.App., 15 371 So.2d 1258 410, 800, (1964); (1979). Utah 2d 393 P.2d 801-802 Morrison-Knudson Const. Co. v. Industrial Com’n., 390, (1967). Gibbs, 18 Utah 2d 424 P.2d 138 Ins. Co. v. supra, Gulf 8. note 6. Com’n., 32, Prescott, Thomas Industrial 5. City v. 95 Utah 79 9. United Park v. Mines Co. su- (1938). 4; E. R. Moore v. Industri P.2d 1 See Co. pra, E. R. Moore Co. v. Industrial note Com’n., Com’n., supra, 353, 207, al 71 Ill.2d 17 Ill.Dec. note 5. (1978). N.E.2d 206 35-1-85, U.C.A.1953; Vause v. Indus- 10. Gibbs, Tex.Civ.App., Com’n., 217, 6. Gulf Ins. v. Co. trial 17 Utah 2d 407 P.2d 1006 (1976). (1965); S.W.2d 720 Duaine Brown Chevrolet Co. v. Indus- 478, trial 29 Utah 2d 511 P.2d 743 Com’n., (1973); Savage Larson, v. Compensation, Industrial Workmen’s sec. 57.- Rauh, Gypsum (1977). 12. See United States v. Co. Okl., (1957); E. Co. v. R. Moore P.2d Com’n., Com’n., 5; supra, Industrial Firestone Tire 11. Sanderson v. Industrial note 16 Utah 2d Com’n., 348, & Rubber Co. Industrial 76 Ill.2d 400 P.2d 756 That this rule also (1979); applies 28 Ill.Dec. 390 N.E.2d to the Commission’s refusal to find dealing We here with the as HALL, (dissenting): Justice whether the presented evidence to of fact agree questions I of course finding of supports tempo- Commission its by the Commission. are to determined disability up rary total Wilkins to Janu- However, in this case reveals the record in dis- facts are none of material ary simply called Commission pute. The law, in case of dis- Under our those facts and the law to upon apply ability, provided was to- whether defendant thus determine long “so as such payable statute tally disabled. no is total.”1 I find definition of “total performed for services our statutes. Whether em- selling Company plaintiff Entwistle disabled is an ultimate ployee trailers, trips sales which included matter to be decided Commission.2 he performed The services various dealers. give The function of medical camp- were sales of for himself and son diagnosis of its benefit trips, shells, included sales er which also relating exper- to those matters within its although frequency and distance. of lesser tise, infringe upon and not to Commis- an test of total legal responsibility to sion’s decide issue City in United Park nounced Court disability.3 Prescott, al.,1 is et Company Mines perform gen work of the whether one can disability”? agree What is I “total *5 when in performing he was eral character that does Justice Crockett’s statement it jured. abject helplessness mean or a state opinion that there is little I am of the injured must be employee that unable traveling between distinction to be made any agree do all. do not that work at I making sales of trailers purpose for the test if the “can no is met sale of performing like services longer perform the of a duties character I sub- camper Consequently, find no shells. occupation prior inju- required in his support record to stantial evidence in the ry.” de- Commission that the conclusion C.J.S., 304(b), Workmen’s Com- totally fendant was disabled. pensation, that total dis- states I aside of the Com- would set the order period during ability healing period or mission. to work and which “the claimant unable recovery is reason- disabled CROFT, Judge (dissenting): District v. ably expected.” Caillet Industrial Hall I in the of Justice concur dissent 8, 58 90 Utah P.2d Commission of no in the that there is substantial evidence Wolfe, opin- (1936), dissenting in his Justice support record to the conclusion of ion, said: was to- that defendant Wilkins April tally following his accident of disabled disability is founded on Temporary total 1,1978. 15,1977, satis- I am January until disability, actual injured in his fall fied that defendant was means and further that 15, 1977, with a from the truck particular applicant to disablement recurring pain in back in resulting and (not just work type in the wages earn I am the weeks that followed. not satisfied do) work did he was particular a any than that the resulted more type work any other trained for or temporary partial disability. Halvorson, Williams, Spencer 87 Utah v. Industrial 19 Utah see Inc. (1935). (1967). P.2d 2d Martin, Utah, (1964). 584 P.2d 828 IGA Food Fair 1. 15 2d 393 P.2d 800 Utah 35-1-65(1), 1. Sec. U.C.A.1953. person mentality pencilled

which a of his and at- notation for that date appears also tainments could do. leg “becoming to state that was his left worse, deterioration,” yet muscle the medi- Justice that he Wolfe also stated did not panel cal found his of total competent give think doctors are day. ended the next testimony applicant on whether is eco- nomically totally disabled. I search the records of two medical treating in vain physicians any sugges- for It seems to me that in the case before tion that was totally disabled. exactly Court that is what the medical most, At one finds medication and a week panel quote did. In the from the medical prescribed or so of rest as the treatments. report Crockett, cited Justice it following His activities loss of his em- panel recognized was stated that the ployment until the end of 1977 as disclosed significant out carrying per- by the far record falls short of the “actual good portion time, business sonal a suggested by test Justice Wolfe. particularly following (August 29, the fire Nor do I think the record sustains a 1977), undoubtedly some of the time “perform defendant could not fire, might prior to the someone be performing time considered able to injured, when or other work which part-time, but that in the man capabilities may able to do panel, he was “substantially disabled” learn to do.” significant employment par- for another ty period. As was stated in I would reverse Commission’s order (supra), IGA Food Fair v. Martin that im- for proceed- remand the case further me as presses gratuitous but “a conclusion ings entitlement, to determine Wilkins’ if upon a matter of fact unrelated to its medi- any, under 35-1-66 Section to relief expertise.” cal partial disability. Wilkins’ activities before fire noted J., MAUGHAN, does not participate C. by Justice Hall in his dissent involved trav- *6 herein; CROFT, Judge, District sat. eling making sales and deliveries of camper shells. activity This was terminat-

ed the destruction of the business by

fire, not by defendant said he felt

as he watched his business destroyed flames. uncontrollable The exam-

ining physician’s report on the felt

after the fire was WILLIAMS, “recurrent back strain Director, Depart- D. Dale again today fire fighting with the ment of of State Finance things.” clearance of Appellant, Plaintiff and report medical recites that af- fire, September, ter the October UTAH, UNIVERSITY OF Defendant November, spent good Wilkins deal of Respondent. visiting time bankers and doing other No. 17000. things trying get back into business. No visits to the doctors occurred those Supreme Court of Utah. three months. A visit December Feb. 1977, to Dr. Pratt problem disclosed his rhinitis,” “allergic then was which the dic- tionary defines as an “inflammation of the or its

nose mucous membrane.” Dr. Pratt’s Dictionary English 4. Random House 5. Thomas v. Industrial see footnote 5 Language, Unabridged opinion. Edition. Justice Crockett’s