Overman v. Industrial Commission

MOFFAT, Justice. The cause comes to this court for review upon certiorari to the Industrial Commission. The only question is whether the Overman Mattress Company had a sufficient number of employees to bring the matter within the statute. To bring an employer under the Workmen’s Compensation Act, it is essential to show that the employer had in service three or more employees, workmen or operatives regularly employed. Sec. 42 — 1—40, U. C. A. 1943; Palle v. Industrial Commission, 79 Utah 47, 7 P. 2d 284, 81 A. L. R. 1222. Personal injury by accident arising out of or in the course of employment suffered by James McGee is conceded and found by the Commission. There are no differences about *470 the weekly wage or the disability. Plaintiffs say there is-no evidence to support the finding that the “so-called partnership * * * was not at the time of the injury a bona fide partnership, but that it was a pure subterfuge designed to evade liability under the Workmen’s Compensation Act; and that defendant [plaintiffs here] did have in service three or more employees in the business on December 12, 1941.” The evidence names six persons. They are: C. E. Overman, A. E. Overman, Veri Peay, Orin Conrad, June Morrison and James McGee. June Morrison, under a written contract, had agreed to set up a set of books for the Overman Mattress Company for the sum of $80. The agreement is dated October 13, 1941. No time is specified within which the work should be completed. She was not required to do any of the work at the plant, nor be there at any time or at all. It was a contract for an independent service for an independent piece of work, free from control of the Company. When the set of books was set up and she was paid, that was the end of the matter. June Morrison must be eliminated as an employee. This leaves five persons involved. In one part of McGee’s testimony, he says that at the time he was working there were besides himself “A boy by the name of Earl Peay and Mr. Overman’s brother Conrad.” Later he said he did not know when Orin Conrad came down from Ogden or when he went back, or whether he received any pay, and he does not mention any work Orin Conrad did. In the face of this, C. E. Overman testified that Orin Conrad was a visitor at his home for about a week, that he was never hired and never received any pay. Orin Conrad says he was never employed by the Overman Mattress Company, but was employed in Ogden and came to Salt Lake City merely on a visit. This would appear to eliminate Orin Conrad and leave only four persons for consideration. Let us proceed to the determination of the re *471 lationship of the other four. McGee is concededly an employee. This leaves then the two Overmans and Peay. All the evidence is that the two Overmans and Peay were operating the business as a partnership. The Commission does not find otherwise, but for some reason which we cannot find in the record thought the organization or business was not “a bona fide partnership.” We quote the following from the case of Wherritt v. Industrial Commission, 100 Utah 68, 110 P. 2d 374, 376: “The fact finder is not always required to believe the uncontradicted evidence of a witness. Gagos v. Industrial Comm,., 87 Utah 101, 48 P. 2d 449, nor is it hound to adopt the theory of applicant for which there may be supporting evidence or inference. Sugar v. Industrial Comm., 94 Utah 56, 75 P. 2d 311. “ ‘The duties of this court are limited to a determination of ¡questions of law. We may interfere with the commission’s findings of fact * * * where an award is denied against uncontradicted evidence without any reasonable basis for disbelieving the same. In such cases a question of law is presented for determination; otherwise, the findings of the commission must be affirmed.’ Russell v. Industrial Comm., 86 Utah 306, 43 P. 2d 1069, 1072. “In Norris v. Industrial Comm., 90 Utah 256, 61 P. 2d 413, 415, we said: “ ‘Where the matter presented on appeal is the question of whether the commission should have in law arrived at a conclusion of fact different from that at which it did arrive from the evidence, a question of law is presented only when it is claimed that the commission could only arrive at one conclusion from the evidence, and that it found •contrary to that inevitable conclusion.’ ” However, in the instant case the evidence as to the partnership is uncontradicted and all one way. These three individuals, C. E. and A. E. Overman and Veri Peay, were ■engaged in a joint enterprise for profit in which they shared the profits and losses. When there were sufficient profits they shared them on the basis of $17.50 a week to each of them. When the earnings were not sufficient they stood the losses by at times being re *472 quired to reduce their weekly stipend to as small an amount as $12 a week. The fact that one of the members was taken into the partnership as a method of relieving the business from compensation liability under the Workmen’s Compensation Act, if such be the fact, perpetrates no fraud per se and was a method of cutting expenses of a business running close to the line of profit and loss. There were not three employees engaged in the operation of the business. The award of the Commission is set aside. LARSON and WADE, JJ., concur.