Johannsen v. Industrial Accident Commission

THOMPSON (IRA F.), J.

This application seeks to annul an award of the respondent commission in favor of respondent Harry S. Burt. The facts sustaining the award are as follows: The petitioners both owned a lot adjoining each other. They determined to pool their interest and improve them. They built a drive-in-market upon the lots for the purpose of renting space therein for various purposes. Peterson owned two similar markets. They then purchased an old four-family flat building, which they moved on to the rear of one of the lots, intending also to erect twenty auto camp units in the rear of the flat building. It was in connection with the digging for and placing the sewer for this flat building with possibility of later tying in with the auto camp units in which the respondent Burt was injured. At the suggestion of a plumbing company Mr. W. F. Scott, who was not a master plumber, called on Peterson on March 27, saying that he understood Peterson desired to hire a plumber by the day to do some

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work, to which Peterson said they would go and look at the job to be done. They inspected the contemplated work in the house and Peterson inquired how long it would take. Scott informed him that it would require two or three days, and when Peterson asked Scott to take out the permit the latter informed him that he could not do it, but that he thought arrangements could be made through a Mr. Vide, who was in the plumbing business, to take out the permit in the name of the owners. This arrangement was .agreed upon, Peterson consenting to the payment to Mr. Vick of a small sum to compensate him for his trouble.. Scott busied himself figuring out the material which Peterson informed him he could buy at wholesale prices. Burt accompanied Scott on this particular day and asked for the work of plastering, but Peterson said the carpenters could care for the little that was to be done. Scott also asked about the sewer work, to which Peterson replied: “I haven’t decided on the sewer yet.” A couple of days later, however, he said to Scott, “Well, you’d just as well go ahead with this sewer,” and instructed Scott to get his brother-in-law Burt to do the digging. Burt came on the following morning and after digging a ditch for the water pipes, started excavating for the sewer. Peterson talked to Burt the first morning that he was on the job and told the latter that he could also have the work of putting up a chimney and a little plastering. The sewer trench ranged in depth from about three feet next to the house to about nine feet, where it connected with the main line in the street. On the fifth day the trench caved in on Burt, causing the injuries for which claim was made. On the morning preceding the injuries the two men, Scott and Burt, were in the act of shoring up the sides of the trench when they were stopped by Peterson and told that it was unnecessary. The materials for the sewer were paid for by the petitioner Peterson. Immediately after the accident Peterson presented a document to Scott with the request that he have Burt sign it, in which instrument Burt was to state that Scott was his employer. He also offered to loan Burt $50 with the understanding that it did not need to be repaid. Further he wanted Scott to ask Vick to assume responsibility and also to offer the sewer inspector $35 or $40 to keep still. Relative to the cost of the plumbing and sewer work