Auerbach Co. v. Industrial Commission , 113 Utah 347 ( 1948 )

This matter is before us to review the decision of the Industrial Commission awarding compensation to one Rela Wardle, as an employee of the Auerbach Company, for injuries arising out of an automobile accident, alleged to have arisen out of, and in the course of, her employment.

Miss Wardle was employed as a cashier of the Company. She was a basketball player, and played upon a team sponsored by the Company as a part of their public relations and advertising campaign. She was not, however, hired as a basketball player. She was paid only as a cashier; but, when she made trips with the basketball team, her expenses were paid. The expenses of all members of the team were paid while on trips, even though the players were not all employees of the Company. When Miss Wardle was hired as a cashier, no conditions were attached to her employment or salary that she should play basketball, when requested. Her playing was voluntary, and the Company never required her to play if she did not care to do so.

So far as the Company was concerned the control of the team was in the hands of the public relations officer of the Company. The team coach was a soldier from one of the nearby camps. The Company also sponsored a softball team, of which Miss Wardle had been a member. This team had uniforms furnished by the Company upon which the word "Shamrocks" appeared, and they were known as the "Auerbachs Shamrocks." The public relations officer of the Company had been connected with this team prior to his employment as public relations officer. Not all players of either team were employees of the Company, and, at certain times when the softball team was away from Salt Lake, non-employee members did receive some pay to compensate them for being taken away from their jobs. Any income from the games went to the Company; but in amount it was hardly sufficient to keep up with the team expenses.

The accident happened at night, after Miss Wardle's duties as cashier had ended for that day. She was riding in an automobile driven by a Miss Green who was not an employee of Auerbach's, nor was she a basketball player. The Company, however, was furnishing the gas for her trip. Another basketball player, an employee of the Company — a Miss Domayne — was also riding in that car. They were on their way to Provo, Utah, for a game. Miss Wardle had not been required to make the trip, but was going because she wanted to. That night the soldier-coach was not present or in charge, nor was the public relations officer in charge or present. The team was under the control of a certain police officer, who was a basketball coach and had been given charge in the absence of the other two men. On the team this night were seven girls, two of whom worked for the Company, and five of whom did not.

Miss Wardle had played for the Company at times when she was not employed by them. She worked temporarily for the Company at first, then quit to finish school. After finishing school she went back to see about re-employment and as the public relations officer knew her and knew her ability as a player, he recommended her employment. His personal liking and desire for her playing ability, however, was in no way connected to the Company employment as a condition of employment in the position of cashier.

Upon these facts the Industrial Commission found that Miss Wardle was injured in the course of her employment. We think the Commission was in error.

The Company did not employ Miss Wardle, nor any of the other players as basketball players. The Company is in the dry goods business, not sport promotion. The issue is limited to a question of whether or not as part of her employment as cashier she was under the duty of playing basketball. We think not. No such condition was attached to her contract of employment. She was under no direction or control by the Company that required her participation. There is, of course, nothing in the nature of a cashier's duties, as such, that by implication includes a duty of basketball playing. As a result, if there is an absence of evidence of any express requirement to include that duty in the position, and an absence of any proof of facts that clearly show that the one position included the two duties — cashiering and basketball playing — the applicant must fail.

In this case, one of the most important elements of the master-servant relationship is missing — that of the right to control the employment. Right to control in this case does not mean merely coaching control, the purpose of which is to produce teamwork when the alleged employee plays; but means the right to require performance of a duty to play, if such a duty exists.

Furthermore, there is no pretense that Miss Wardle was paid as cashier on a basis that included the playing of basketball as an element of qualification.

A case very similar to the present case is that of IndustrialCommission v. Murphy, 102 Colo. 59, 76 P.2d 741, 115 A.L.R. 990. There a baseball manager was injured in an automobile while returning from a company game. The team was maintained as a morale builder for the men as they had no form of recreation. The Company matched all contributions toward the team; and the funds received from games were used as expense money.

The baseball manager maintained he was under compulsion to attend and act in his capacity as manager. The court held otherwise, however. The case cites other authorities along the same line, and criticizes one from Missouri with an opposite conclusion.

Miss Wardle was no more an employee than was the participant in the midget automobile race of the Intermountain Speedways v.Industrial Commission, 102 Utah 126, 127 P.2d 1045 (see also a similar case in Intermountain Speedways v. IndustrialCommission, 101 Utah 573, 126 P.2d 22). These cases emphasize the element of right to control, and point out that it does not mean just any control. Participants in a contest are subject to control for the purposes of safety; teamwork on a basketball team is subject to control for purposes of efficiency in playing. Neither however, is the control contemplated by the Workmen's Compensation Act. Utah Code 1943, 42-1-1 et seq.

We are of the opinion that Miss Wardle was not an employee so far as her relationship to the Company as a basketball player was concerned; and her injury did not arise out of or in the course of, her employment as a cashier.

The award is set aside.

McDONOUGH, C.J., concurs.