Elna A. SHUPE, and Yavette Shupe, by and through her guardian ad litem, Elna A. Shupe, Plaintiffs and Appellants, v. WASATCH ELECTRIC COMPANY, INC., a Utah Corporation, and Esco Corporation, an Oregon Corporation, Defendants and Respondents.
No. 14117
Supreme Court of Utah
Feb. 20, 1976
546 P.2d 896
You are instructed that the term “Distribution for Value” means to deliver a controlled substance in exchange for compensation, consideration, or item of value, or a promise therefor.
You are instructed that under the law marijuana is a controlled substance.
The first paragraph of Instruction 6B incorporates, in haec verba, provisions of
Instruction 6A defines a misdemeanor, Instruction 6 a felony. The jury was given two verdicts, one responding to Instruction 6A and one responding to Instruction 6. The jury, having an opportunity to consider both, elected to return a verdict in response to No. 6.
A further contention of defendant is that it was improper to give Instruction 6B since there was no factual basis on which to ground an instruction concerning aiding and abetting. State v. Baum1 is cited as authority for this contention. The case is distinguishable from the present one, in that here there was conflicting evidence from which the jury could have found defendant aided and abetted. In Baum it was otherwise, the court noting:
. . . There was no evidence to show, and no one claimed, that the defendant but aided or abetted in the commission of the offense, or, not being present, advised or encouraged its commission.
In view of there being no such evidence, the court held that to give such a charge was misleading and harmful.
Here there was testimony of the undercover agent that his discussions preceding the sale, were with defendant, but at the time of the sale one Gooch brought the package from the kitchen and demanded an extra $5 as a condition to transfer. Defendant testified he was not involved with the transaction, although he was present, and for unknown reasons the agent handed the money to him. Since all parties agreed that Gooch was an active participant in the sale, and the evidence concerning defendant‘s role was sharply conflicting, an instruction on aiding and abetting was proper.
HENRIOD, C. J., and ELLETT, CROCKETT and TUCKETT, JJ., concur.
D. Clayton Fairbourn, Salt Lake City, for plaintiffs and appellants.
Richard H. Moffat, Salt Lake City, for defendants and respondents.
This is a wrongful death action brought by the plaintiffs who are the wife and daughter of a deceased workman who was in the employ of Christiansen Brothers Construction Company. The district court granted a motion for summary judgment by the defendants, and the plaintiffs appeal.
Christiansen Brothers Construction Company was a general contractor engaged in the construction of condominiums in Salt Lake City, Utah. The defendant Wasatch Electric Company was a subcontractor who agreed to design, furnish and install all the necessary electrical wiring and equipment at the construction site. Prior to July 19, 1974, Wasatch had installed electrical cables for the purpose of supplying power to a crane owned and operated by Esco Corporation. On July 19, 1974, Tom Shupe, a carpenter, was employed by the general contractor and was performing carpentry work on the construction site. The electrical cable had been draped over certain metal forms and reinforcing steel. Due to defective or insufficient insulation of the cables, electrical energy escaped from the cables and energized certain metal cement forms that Shupe was working with, resulting in his electrocution.
Plaintiffs filed their complaint pursuant to the provisions of
When any injury or death for which compensation is payable under this title shall have been caused by the wrongful act or neglect of another person not in the same employment, the injured employee, or in case of death his dependants, may claim compensation and the injured employee or his heirs or personal representatives may also have an action for damages against such third person.
The term “same employment” used in the statute has been defined by this court in a
The legislature, undoubtedly being aware of the decisions of this court construing the terms “same employment” in 1975 amended
For the purposes of this section and notwithstanding the provisions of
Section 35-1-42 , the injured employee or his heirs or personal representative may also maintain an action for damages against subcontractors, general contractors, independent contractors, property owners or their lessees or assigns, not occupying an employee-employer relationship with the injured or deceased employee at the time of his injury or death.
The amendment if applicable would leave the plaintiffs in court.
The defendants contend that the amendment can have only retrospective effect and that the amendment was adopted and became effective after the plaintiffs’ cause of action arose. The early case of Mercur Gold M. & M. Co. v. Spry3 dealt with the problem in the following language:
Constitutions, as well as statutes, should operate prospectively only, unless the words employed show a clear intention that they should have a retrospective effect. This rule of construction as to statutes should always be adhered to, unless there be something on the face of the statute putting it beyond doubt that the legislature meant it to operate retrospectively.
The rule in that case has been codified in
No part of these revised statutes is retroactive, unless expressly so declared.
The amendment above referred to provides a cause of action on behalf of an injured workman against individuals not covered by the statute prior to its amendment. To apply the statute retroactively would compel a new class of individuals to assume risks which did not exist prior to the amendment, and we are of the opinion that retroactive application would deny equal protection to a new class brought within the terms of the statute as amended so as to deprive them of equal protection of the laws.
The judgment of the court below is affirmed. No costs awarded.
HENRIOD, C. J., and CROCKETT, J., concur.
MAUGHAN, Justice (dissenting):
For the following reasons, I dissent:
The issue in this matter is whether under
The language of
The following shall constitute employers subject to the provisions of this title:
Title is the key word here. Thus the definitions of
Where any employer procures any work to be done wholly or in part for him by a contractor over whose work he retains supervision or control, and such work is a part or process in the trade or business of the employer, such contractor, and all persons employed by him, and all subcontractors under him, shall be deemed, within the meaning of this section, employees of such original employer. . . .
The legislature specifically has expressed an intention that its definition of a statutory employer remain constant throughout the Workmen‘s Compensation Act. In contrast, its definition of who are statutory employees is expressly confined to those provisions wherein the responsibility flowing to them from the statutory employer is set forth.
The definition of a third person “not in the same employment” is not the subject of
The legislature in enacting
. . . the overall responsibility of the general contractor for getting subcontractors insured, and his latent liability for compensation if he does not, should be sufficient to remove him from the category of “third party.” He is under a continuing potential liability; he has thus assumed a burden in exchange for which he might well be entitled to
immunity from damage suits, regardless of whether on the facts of a particular case actual liability exists. This burden may also be translated into financial terms. . . . The general contractor, by insisting that the subcontractor carry compensation insurance, imposes a cost on the subcontractor which the subcontractor will pass on to the contractor in his charges under the subcontract.5
When the positions are reversed, and an employee of the general contractor, or the general contractor himself as subrogee sues the subcontractor in negligence, the great majority of jurisdictions have held that the subcontractor is a third party amenable to suit. The reason for the difference in result is forthright: the general contractor has a statutory liability to the subcontractor‘s employee, actual or potential, while the subcontractor has no comparable statutory liability to the general contractor‘s employee.6
Frohlick Crane Service, Inc. v. Mack7 is factually similar to the instant action. There, an employee of the general contractor sued the subcontractor for negligence. The trial court dismissed the action on the ground that plaintiff was suing his co-employee, and such suit was not permissible under a statute which permits an employee to bring an action against a person “not in the same employ.” The ruling of the trial court was predicated on a statute which provided that an employer, who contracts part of his work to a subcontractor, is deemed to be the employer of the subcontractor and his employees for Workmen‘s Compensation purposes.
The Supreme Court of Colorado stated that to treat the two parties as co-employees would be exalting form over substance, for statutory interpretation must be governed by legislative intent. The purpose of the Workmen‘s Compensation Act was to afford compensation for work-related injuries, regardless of fault. The employer, in return for his responsibility under the act is granted immunity for common-law claims, but the act does not shield third-party tort feasors. To prevent an employer from avoiding responsibility under the act by contracting his work to an uninsured contractor, the statute provides that a subcontractor and his employees are deemed to be the employees of such an employer. These provisions do not indicate a legislative intention that a subcontractor should be free of responsibility for his own negligence. The court held, in accordance with the great weight of authority, that subcontractors are subject to suit by employees of the general contractor.
A valuable common-law right should not be deemed destroyed by a statute, except by explicit language. The instant action is not a case where the claimant‘s right to compensation is dependent upon labeling the general contractor as a statutory employer.
The proper interpretation of the phrase “not in the same employment” (
This cause should be reversed, and remanded for trial on its merits.
ELLETT, J., concurs in the views expressed in the dissenting opinion of Mr. Justice Maughan.