Certiorari from the Industrial Commission of Utah from a finding that Morris Dewayne Rosenbaum was not an employee of an employer subject to the Workmen's Compensation Act.
While Rosenbaum was working on the roof of the Box Elder County Jail, he slipped and fell and was killed.
The question at issue may be better understood after we give some of the facts, especially those undisputed.
Carl Seashore, a tinsmith, had a contract with the county to paint and repair the roof of the Box Elder County Court House and jail, which contract included furnishing labor and materials. H. Fay Sholty, a painting contractor, subcontracted orally with Seashore that he, Sholty, would do the painting and furnish the labor and "materials" except that Seashore would furnish the paint. For this job Sholty was to receive $100. This $100 was paid by Seashore to Sholty before the work was completed in order to be payable out of the year's budget. Sholty completed the painting of the roof of the courthouse, but before he could do the jail roof he was delayed by weather. When nice weather returned and Sholty, because busy on other jobs, did not resume the work, Seashore "jumped on him" because he did not continue the work, whereupon a conversation took place between them, the verions of which vary slightly. Sholty testified that he told Seashore
"If you get it done before I can, I will pay for it, ofcourse."
Seashore testified Sholty told him
"If you can get it finished before I can, get it done and Iwill pay your men for it." (Italics ours in both conversations.) *Page 111
Seashore's testimony itself varied somewhat between his stating that Sholty said
"I will pay for it," "I will pay the men," or "I will pay your men for it,"
then ended by describing it as
"Something on that order."
Subsequently, Seashore mentioned the conversation to two of his employees — his son and Morris Dewayne Rosenbaum. He told them that "we" had better finish the job; that Sholty had said to go ahead and he would pay for it. The son and Rosenbaum went ahead, furnishing their own brushes, and using equipment found on the job. They had worked some two hours or more when Rosenbaum slipped and fell from the building and suffered injuries from which he died. After the accident, Sholty paid Rosenbaum bycheck for his time and also paid Seashore's son. Sholtycompleted the work thereafter.
Sholty did not know that either Rosenbaum or Seashore's son had gone on the job until he learned of the accident. He had never had any conversation with either of them about the job. The son and Rosenbaum went on the job the first afternoon they didn't have anything to do for their employer, 1, 2 Seashore. Seashore never employed more than two men. Sholty employed as high as 20. Therefore, under Sec. 42-1-40, U.C.A. 1943, Seashore was an employer not subject to the Industrial Commission Act, but Sholty was. The question pertains to jurisdiction. Jurisdiction is just as much involved where the Commission denies that an employee or employer is subject to the Workmen's Compensation Act as in the cases where it takes jurisdiction. Hence in this case we weigh the evidence and determine whether the Commission wrongly decided it did not have jurisdiction.
There have been various factors suggested in the cases for determining whether a person was an employee of another *Page 112 or an independent contractor. In instances these may be helpful in determining as between two parties who was the employer of certain employees. Murray v. Wasatch Grading Co., 73 Utah 430,274 P. 940; Miller v. Ind. Comm., 97 Utah 226,92 P.2d 342; "Determination of Employer-Employee Relationships in Social Legislation," Columbia Law Review, June, 1941, Vol. XLI, p. 1015.
The tests laid down in the cases to determine whether an employee, at the time of the accident, bore the relationship to one or the other of two persons are really of little value in this case. The evidence of the understanding between Sholty and Seashore set out above sufficiently shows 3 that Seashore sent his son and Rosenbaum on the job not on his own account but on account of Sholty. Under the evidence it was for the account of Sholty. Why for the account of Sholty rather than on his own account? Because there still existed the contract between Seashore and Sholty that the former was to furnish the paint and the later was to furnish the labor and equipment. This contract had never been terminated nor repudiated. All of the evidence of the conversation between Seashore and Sholty, whichever version taken, as set out in the main opinion, is consistent only with the theory that Sholty recognized his obligation as subsisting and if Seashore got to it first, the work was to be done on account of Sholty. Sholty knew he had been paid and did not offer to rescind the contract and pay back the money to Seashore. He in effect said to Seashore:
"I have other work I must do. I have a contract with you to do this painting and you have the primary obligation with the county to do it so we are both anxious to see it finished. If you have any men available you do it and I'll pay them."
This certainly is consistent only with the view that if Seashore's men did the work it would be for the account of Sholty. It was not, under this arrangement, necessary for Sholty to hire the men or know when they were working. Seashore was doing it on Sholty's account and either loaning *Page 113 his employees to Sholty or in instructing them to work on Sholty's job was doing it as agent of Sholty. The statement of Sholty that he would pay "your men for it" is consistent only with the theory that the work was to be done on Sholty's account. Sholty paid both Seashore's son and Rosenbaum. The payments made by Sholty to or on behalf of the boys were not "consistent with a refund." It would indeed be a very peculiar manner of refunding money. It would have been most easy for Sholty to tell Seashore:
"I have not time to do the job. I want to throw up the contract. Here is your hundred dollars. You do the work yourself."
Instead of that, Sholty retained the hundred dollars and told Seashore:
"If you can get it done before I can I will pay for it of course" or "I will pay you for it," or "I will pay your men for it."
This language is not consistent with the repudiation of a contract but only with the intention to fulfill a contract. Moreover, Sholty finished the job. The conduct of the parties throughout is consistent only with an understanding that Seashore's efforts to finish the job would be on behalf of Sholty and on his account.
The findings and award of the Commission are set aside. Costs are awarded to plaintiffs.
McDONOUGH, C.J., and WADE, and LATIMER, JJ., concur.