213 P. 197 | Utah | 1923
The plaintiff, by writ of review herein, seeks the annulment of an order pf the defendant, under the Workmen’s Compensation Act (Comp. Laws 1917, §§ 3061-3165), awarding compensation to Bryan D. Roberts for injuries sustained.
The facts of legal import are, in substance, as follows:'
In May, 1922, Lars Frandsen, the. plaintiff, was conducting a brickyard or kiln in or near Price, Utah. He sold a quan
Pursuant to an agreement between themselves, Campbell, the purchaser, paid to Frandsen the cost of hauling, which was paid to the employees by Frandsen. It was not claimed that Roberts had any notice or knowledge of Campbell’s relation to the transaction.
The defendant Industrial Commission awarded compensation to Roberts upon finding that he was regularly employed at the time by the plaintiff and was injured by reason of an accident arising out of or in the course of his employment.
The plaintiff contends that there is.no evidence to support the finding that Roberts was employed by him, but that the evidence shows that Campbell, the purchaser of the brick, was
It is not claimed that Roberts was an independent contractor.
The evidence is clear that Frandsen was conducting the brickyard; that he employed the workmen to haul the brick without making any mention of Campbell whatever; that at the time of the accident he was personally present directing the work; that he paid the workmen.-
It cannot be said that his undisclosed agency for Campbell could affect the legal relationship between him and the employees. 31 Cyc. 1555; Morris & Co. v. Malone, 200 Ill. 132, 65 N. E. 704, 93 Am. St. Rep. 180; Scott v. O. A. Hankinson & Co., 205 Mich. 353, 171 N. W. 489; 1 Honnold, Work. Comp. 119; Cyc. Work. Comp. Acts, 46, note 29 (a).
The finding of the Industrial Commission that the plaintiff was the employer of Roberts at the time of
The difficult question is whether the Commission was justified in finding that the injury arose out of or in the course of the employment of Roberts.
The plaintiff contends that Roberts did not enter upon the employment of hauling brick at all; that before he could enter upon that employment under his engagement it would be necessary for him to have his team and wagon completely equipped upon which to load the brick; that Roberts was engaged in so preparing his wagon when the accident occurred; and that it therefore did not arise out of or in the course of his employment. This argument is somewhat disputed by the fact, established by the evidence,' that the three employees had arrived upon the ground and had agreed between themselves to assist each other in loading the brick on the three wagons, and that while two of them were loading and Roberts was fixing the racks on the wagons the accident occurred.
The actual oemipation of the men, under the circumstances, lends much force to the claim that they had all actually entered upon their employment.
It is not decided in this case that either one of these three elements, standing alone, would be decisive of the question.
The general rule is laid down in Cyc. "Workmen’s Compensation Acts, p. 83, as follows:
“Where the employee is injured while doing something not strictly within his obligatory duty, hut which is incidental thereto, he may he entitled to compensation. Of this character are injuries sustained while the employee is preparing to begin work after arriving at the employer’s premises, or preparing to leave when the work is over,” etc.
In 1 Honnold, Workmen’s Comp. p. 349, it is said:
“An employee is not, like a part of a machine operated hy him, fixed to precisely the mechanical movements he must perform in order to discharge his industrial function.”
And again, at page 360:
“The preparation necessary for the beginning of work after the employer’s premises are reached is a part of the employment.”
In Brown v. City of Decatur, 188 Ill. App. 147, where a workman for the city waterworks was ordered to bring his rubber boots and assist in fixing a leak in the water mains between railroad tracks, and, after his arrival, when he was attempting to go to a hand car for the purpose of sitting on it to take off his shoes and put on his boots, he was struck by a train and killed, it was held that he was in the performance of an act incidental to his employment, and compensation was allowed.
That the employee is to furnish his own tools oi equipment does not necessarily preclude the finding that a particular act, involving the preparation or preliminary use of such tools or equipment, is in the course of the
Roberts was employed to haul brick with a team and wagon from his employer’s brickyard. As a necessary antecedent to the actual hauling, he must load the brick on his wagon; and in loading, it is but natural and reasonable that he would be required to adjust his rack or wagon box according to the demands of the particular work. When injured, he was “driving a nail on the end board.” While the evidence is not specific on the subject, we may reasonably
The case presents somewhat novel circumstances, and its solution is not free from difficulty; but in view of all the facts in the case,.the purpose and policy of the law, and the liberal rule of construction established by this court (Chandler v. Ind. Comm., supra), we cannot say that the Industrial Commission acted without or in excess of its powers, when it found that the accident arose out of or in the course of the employment.
Award affirmed, with costs.