28 P.2d 182 | Utah | 1934
This is a proceeding to review an order of the Industrial Commission of Utah dismissing the application for adjustment of claim filed by plaintiff with the commisson October 27, 1932. In such application it was alleged that plaintiff on June 23, 1927, was injured by accident arising out of and in course of employment with the Provo Brick Tile Company, a corporation, while hauling hay, he being on top of a load of hay when the team started suddenly and precipitated him to the ground causing permanent injuries, that compensation was paid him for a period of five years by the State Insurance Fund, as well as medical and hospital expenses, and that the State Fund then refused to make further payment on the ground it believed there was no total permanent disability. *378 On the filing of this claim the case came before the Industrial Commission of Utah for formal adjudication for the first time. At the hearing the State Fund offered in defense that at the time of injury plaintiff was engaged in agricultural work, was not covered by the policy of insurance issued by it to the employer, and that he had not suffered total permanent disability.
The findings and conclusions of the commission follow:
"I. That Heber Harding brought this proceeding before the Industrial Commission of Utah by virtue of an application filed on the 27th day of October, 1932; that the applicant at the time of the hearing was 62 years of age and was married; that the applicant was injured on the 23rd day of June, 1927, while employed by the defendant, Provo Brick Tile Company, herein referred to as the Company.
"II. That the Company is the owner of a tract of land consisting of about 100 acres situated a short distance North of Provo City, Utah. It is engaged in manufacturing brick and tile. The plant consists of several brick kilns together with the buildings necessary in the making of brick and tile. About 10 acres of the land is used for the purpose of manufacturing brick, and about 40 to 50 acres of the 100 acre tract is under cultivation and the balance is in river bed. At the time of the injury the Company had about 12 head of horses in use in its operations and the cultivated land was devoted to the raising of hay and grain. All hay and grain raised by the Company was fed to the horses used by the Company in its operations. The active season of the Company's operations is from March to November. The men regularly employed in the plant were used to harvest the hay raised on the farm land of the Company.
"III. The Company carried insurance on its employees with the defendant, State Insurance Fund. The employees of the Company were classified into groups and the applicant was classed as being engaged in Brick and Clay Products manufacture, including construction and reconstruction of sheds and kilns, and clay shale and sand digging. At the time of the injury the insurance policy did not cover farm labor. The insurance policy, marked Defendant's Exhibit `A,' has attached several endorsements and the first endorsement carrying coverage for farm labor is for the year 1931.
"IV. The principal business in which the applicant was engaged was loading and unloading the kilns. On the day of the injury the applicant had been working in the brick kilns prior to eleven o'clock in the forenoon; he had helped haul one load of hay and was helping *379 with the second when he fell from the load of hay and sustained the injury complained of. That the total time the applicant worked in the hay each season would not exceed, on the average, more than three days. That as a result of the injury the applicant was disabled and was under the care of a physician and confined to the hospital for a considerable time. In view of the conclusions reached by the Commission we make no findings as to the extent of the disability or its permanence.
"If an employer can refuse to provide insurance for its employees performing such agricultural work as was done by the applicant and can, by having the regular industrial employees do the farm work, claim the benefits of the act, then the insured Company would secure coverage for its employees for employment not embraced in the contract of insurance. Under the contract of insurance in this case, the State Insurance Fund undertook the coverage of the employees of the Company engaged in work specified in the contract.
"Nor can the insurance Carrier be held liable merely because the applicant was generally engaged in work covered by the policy. If the Company had elected to provide coverage for its agricultural employees the State Insurance Fund could have no ground to complain. It would then have contracted to meet just this situation. But the Company cannot decline to provide coverage for such employees while doing farm work and then protect itself by showing that it used its regular employees for farm work only when such work was necessary. On such occasions and during such employment they were no longer in the course of the employment for which they were insured."
The record discloses that the facts found are amply supported by evidence. Indeed, there is little conflict in the evidence. Other facts shown by the record but not included in the findings are these: That plaintiff filed a claim for benefits under the Workmen's Compensation Act with the State *380 Insurance Fund (Industrial Commission of Utah), wherein he stated he had sustained injury on June 23, 1927, while in the employ of the Provo Brick Tile Company, and in answer to the question, "Describe in full how injury was sustained," said: "Fell off wagon hauling hay. Horses pulled wagon suddenly." The part of body injured was said to be, "shoulders and back." This claim was received and filed by the State Insurance Fund July 11, 1927. Premiums were paid by the employer to the State Fund based on the wages paid plaintiff for his full time, including the parts of two days engaged in hauling hay, payments being computed under the classification in the policy No. 4029, "Brick Manufacturing, not otherwise classified, including construction and reconstruction of kilns." The policy includes a classification No. 7205, drivers of animals and drivers' helpers (not otherwise classified)"; but there was no coverage for agricultural laborers. Plaintiff testified that on the day of the accident he was driver of the team and was on top the load of hay which was being loaded in the field when one of the workmen started toward the horses with a pitchfork in his hand and frightened the horses, causing him to fall off the load of hay. That after the accident, at the hospital, he had a conversation with the manager of the brick company respecting liability on account of the injury and was told by him that he would be cared for by way of compensation from the State Insurance Fund. That he understood at the time that by acceptance of compensation benefits he would be precluded from holding the company liable for negligence.
The State Fund interposed two defenses to plaintiff's application for continued compensation on account of alleged total permanent disability: (1) That plaintiff was not totally and permanently disabled, and (2) that at time of his injury he was not insured by the policy issued to the employer because he was then engaged in agricultural employment. The commission withheld decision on the question of disability, but held the plaintiff not covered by the policy of insurance because he was injured while in agricultural employment. *381
Two points are urged by plaintiff on this review: First, that the conclusions of the commission are erroneous as matter of law; and, second, that the State Insurance Fund was and is estopped from making the defense of nonliability under its policy because of having assumed liability and paid compensation for a period of five years.
First, as to estoppel: Ordinarily, in the absence of prejudice to the employee or of facts giving rise to estoppel, an insurance carrier, may, notwithstanding voluntary payment of compensation, the furnishing of hospital or medical care, the entry of appearance, or statement made that the policy covered the employee, urge the defense that the employee did 1-3 not meet with an accident, or that the policy did not cover the employment, or that there was no causal connection between the injury and disability. Taggart v. IndustrialCommission,
Somewhat analogous, and affording support to the position we take, are the cases which hold that where an employer's liability insurance carrier assumes the defense against a claim for damages, even though it does not directly admit liability, as was done in this case, the carrier is estopped to deny liability that the employee was not covered *383
by the policy. Rieger v. London Guarantee Acc. Co.,
Counsel for the State Insurance Fund have argued that when plaintiff stepped out of his employement as classified in the policy of insurance into an agricultural employment, not covered thereby, that there was then no contractual relationship upon which to base an estoppel. This sort of contention was well answered in Humes Const. Co. v. Philadelphia Casualty Co., supra, as follows:
"The defendant has also urged that the principle of estoppel cannot be applied to extend the liability of the defendant beyond the terms of the policy and to furnish indemnity to the insured for loss arising from an accident to a person not an employee. The doctrine of quasi estoppel is broad enough to include such a result, and its application is not restricted, as the defendant urges, to cases where the conduct of the insurer precludes him from insisting upon a forfeiture for the violation of a condition contained in the policy. It is the nature of this principle to extend liability. It is not invoked for the purpose of enforcing a true obligation or one that is clearly defined by the terms of a contract. In this consideration it is not material what the defendant's real liability under the policy was, for by its own election of positions it is now precluded from asserting that its liability was not in accordance with its apparent admissions."
In assuming liability and paying compensation after being informed by the filed claim that claimant's injury was sustained by falling off a wagon hauling hay, the insurance carrier placed its own construction on the scope of the policy and the meaning of it. Fullerton v. United States Casualty 4, 5Company,
We are told the commission correctly concluded plaintiff was engaged in agricultural work because of the decision in OceanAcc. Guarantee Co. v. Industrial Commission,
The present case is clearly distinguishable from Ocean Acc. Guarantee Co. v. Industrial Commission, supra, notwithstanding the general situation was somewhat similar in that the employer there conducted a sand and gravel business and also operated a farm on adjacent property. The *385 employee who was injured had never been employed in the sand and gravel business, but was employed exclusively as an agricultural laborer and was injured while so engaged. The court drew the proper distinction when it said:
"This is not a case where the employee temporarily digresses from his usual work, but a case where the employer is engaged in two occupations, one coming under the Workmen's Compensation Act and one that does not come under the act unless the employer so elects," and again, "The evidence is positive and without conflict that the Ogden Realty Investment Company and its receiver were engaged in the business, trade, or occupation of farming, and that the deceased, at the time of his death and prior thereto, was exclusively engaged as an agricultural laborer."
The plaintiff here was regularly engaged as an employee of the brick plant and only incidentally and on rare occasions hauled hay. On the day of the accident he had worked in the brick kiln until about 11 o'clock in the morning and had hauled but one load of hay prior to the one from which he fell. In the Ocean Acc. G. Co. Case the employee was exclusively employed in farming operations and had no relation whatever with the sand and gravel business, although the hay was to be fed horses used in the sand and gravel business.
In Anderson v. Last Chance Ranch Co., supra, the court held that under the provisions of the Workmen's Compensation Law the controlling factor in determining the nature of the employment and the right to compensation was the general business of the employer, and since the general business — that is, "the usual course of trade, business, or occupation of his employer," to use the language of the statute — was agriculture, the injured employee was not within the protection of the Compensation Law even though he was engaged in the construction of a building; the construction of the foreman's home being incidental to the farming operations of the employer. So here the hauling of hay being incidental to the operation of the brick plant and the employee injured being regularly engaged at the plant, the work *386 of the moment was within the characterization of the general business of the employer — that of brick manufacture.
On account of the conclusions reached by the commission, no findings were made on the issue of whether or not plaintiff sustained total permanent disability, and that question is not now before us.
The order of the Industrial Commission dismissing plaintiff's application for adjustment of claim is set asde and annulled, and the cause remanded for further proceedings.
STRAUP, C.J., and ELIAS HANSEN, EPHRAIM HANSON, and MOFFAT, JJ., concur.