S. H. KRESS & COMPANY, a Corporation, and S. H. KRESS & COMPANY, a Corporation, Insurance Carrier, Appellant,
THE INDUSTRIAL COMMISSION OF ARIZONA and R. B. SIMS, BURT H. CLINGAN and WILLIAM E. HUNTER, as Members Thereof, Respondents
On writ of Certiorari from The Industrial Commission of Arizona. Award affirmed.
Mr. W. L. Barnum and Mr. Robert McMurchie, for Appellants.
Mr. Terrence A. Carson, for Respondents.
S. H. Kress & Company, a corporation, filed a petition for a writ of certiorari to review an award of the Industrial Commission of Arizona in favor of Paul Colby in the amount of $514.10. The evidentiary facts in the case are in no way in dispute, the sole question being of the ultimate facts to be deduced therefrom, and the law to be applied to such ultimate facts.
[38 Ariz. 331] It appears that Colby was a carpenter and cabinetmaker in Tucson. He had a shop of his own, was in the habit of doing cabinet and repair work either for day's wages, or for a fixed sum, and had been employed by petitioner a number of times to make repairs around its place of business. On the occasion out of which the injury in question arose it appears that certain windows in the store of petitioner were not working properly, and its manager called Colby and asked him to fix them, and put them in working order, saying, "Whenever you get time, come over and do it." Nothing was said in regard to any specific price for the performance of the work. Colby started to work the next day and was injured a few hours later.
There is no dispute that the injury arose out of and in the due course of the work. There are two questions only for our consideration: First, was Colby an independent contractor within the meaning of the statute; and, second, if he was not, was his employment casual, and not in the usual course of the trade, business or occupation of the employer? The answers depend upon the interpretation of the following portions of sections 1418 and 1419, Revised Statutes of 1928:
"1418. . . . Where an employer procures work to be done 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, then such contractor and the persons employed by him, and his subcontractor and the persons employed by the subcontractor, are, within the meaning of this section, employees of the original employer. A person engaged in work for another, and who while so engaged, is independent of the employer in the execution of the work, not subject to the rule or control of the person for whom the work is done, but engaged only in the performance of a definite job or piece of work, and subordinate to the employer only in effecting a result in accordance with the employer's design, is an independent [38 Ariz. 332] contractor and an employer within the meaning hereof.
"1419. . . . The terms 'employee,' 'workman,' and 'operative,' as used herein, mean: . . . every person in the service of any employer subject to this article as defined in the preceding section including aliens and minors legally or illegally permitted to work for hire, but not including a person whose employment is casual and is not in the usual course of trade, business or occupation of the employer."
In the case of Grabe v. Industrial Com., ante, p. 322, 299 P. 1031, we laid down the rule by which to determine whether an injured person is an independent contractor or an employee within the meaning of the Arizona Compensation Law as follows: "Under section 1418, supra, if A procures B to do certain work for him which is a part or process in A's trade or business, and retains supervision or control over the work, then B. and all B.'s employees and subcontractors to the Nth degree are, for the purposes of the Compensation Act, employees of A, no matter what the terms or method of employment or compensation. It is obvious that were this not so the beneficent purposes of the Act could and would be easily defeated or evaded by unscrupulous employers through the aid of various dummy intermediaries. The statute therefore brushes aside all forms and subterfuges and provides that one just, simple and definite test. If the work be part of the regular business of the alleged employer, does he retain supervision or control thereof? All other matters are of importance only as they throw light on this question. The evidentiary facts will differ with each case, but the ultimate test remains the same." Let us therefore apply this test to the evidence in this case.
It appears that Colby was asked by petitioner's manager to do the work, a certain definite job, without any previous agreement as to time or terms; that [38 Ariz. 333] Colby had been in the habit of working for petitioner previously on various repair jobs of the same general nature; that under such circumstances, in the absence of a fixed contract, it was his custom to charge a regular price per hour for the work; that in this case he was paid for his work on an hourly basis; that after the accident petitioner reported it to the Industrial Commission, stating in the report that Colby was an employee, hired directly by petitioner's manager to do piece work. So far as supervision of the work is concerned, the only direct testimony is the following series of questions and answers:
"Q. But they didn't supervise the work -- they didn't tell you what to do? A. What was needed i had to do to them, that was all. They didn't tell me what they needed -- no. . . .
"Q. Nobody, while you were doing that work, had anything to say about how it was done, or anything else. You as a mechanic was just turned loose to do ...