A. C. GRABE, Petitioner,
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent
On Writ of Certiorari from Industrial Commission of Arizona. Award affirmed.
Mr. O. T. Richey, for Petitioner.
Mr. Terrence A. Carson, for Respondent.
[38 Ariz. 323] LOCKWOOD, J.
On November 3, 1930, the Industrial Commission of Arizona made an award in favor of Andres Castro, against one A. C. Grabe of Tucson, Arizona, in the sum of $1,405.79, for injuries received by Castro while he was engaged in operating a machine used in the making of brick, and Grabe has brought the award before us for review in accordance with the provisions of section 1452, Revised Code of 1928. With the exception of one point, which we shall consider more at length later in the opinion, there is no conflict whatever as to the actual facts in the case. The dispute is rather over the conclusions of law to be drawn from such facts, and we therefore state them as follows:
Castro was injured on June 23, 1930. On the first day of July a report of the injury was filed with the Industrial Commission on the forms provided by it. This report stated the employer's name as "Grabe Brick Co.," and was signed "A. C. Grabe, Prop." On July 16th a formal claim for compensation, also on the commission's usual form, was made by Castro. On August 7, 1930, the commission addressed a letter to "Grabe Brick Co., Tucson, Arizona," stating that according to its records the employer was not covered by compensation insurance as the policy previously held by it had expired, and notifying it of its liability under the statute. On August 29th the commission made an award in favor of Castro in the sum of $2,109.36, and on September 4th a letter, inclosing a copy of the findings and award, was mailed to Grabe Brick Company at Tucson. On September 8th Messrs. Richey & Richey, attorneys of Tucson, notified the commission that "Grabe Brick Co." was merely the trade name of a business owned by Wm. A. Grabe, and that the latter had never been served with any [38 Ariz. 324] notice of process in the proceedings, and that they desired to enter an appearance on behalf of the company and Mr. Grabe, and would later file an answer denying all liability for the accident. Thereupon and on September 10th a formal notice of hearing to be held on the claim September 13th was served upon Richey & Richey, the Grabe Brick Company, Castro, and his attorney, and the Home Accident Insurance Company, which last had previously carried industrial insurance for the Grabe Brick Company. At the time and place of the hearing Wm. A. Grabe was not present, but A. C. Grabe appeared, together with Oscar T. Richey, and Mr. Richey made the following statement:
"We are appearing for Wm. A. Grabe, an individual, and A. C. Grabe, another individual. Wm. A. Grabe is the father of A. C. Grabe. Wm. A. Grabe owns the land and all of the equipment commonly designated as the property of the Grabe Brick Company. The Grabe Brick Company is merely a chosen name by which the business is known and called. It is neither a co-partnership nor a corporation. We will expect to show in order to clear the record of the Industrial Commission in this matter, and also any cloud that might rest on either Wm. A. Grabe or A. C. Grabe in the matter of this claim of Andres Castro some time heretofore filed with the Industrial Commission and upon which claim an award was made on the 29th day of August, 1930. We expect to show in this matter that Wm. A. Grabe rents the land and all the equipment commonly known as the Grabe Brick Company to his son, A. C. Grabe, who pays as compensation and for the use thereof, a stipulated, agreed sum between himself and his father, of so much per thousand brick that he makes, for the use of the land and the equipment; that Wm. A. Grabe has no connection whatever with the employment of Andres Castro, is in no way liable for any compensation to him, does not direct his labors nor has he any control whatever over Andres Castro in anywise. We expect also to show that A. C. Grabe [38 Ariz. 325] has entered into an independent contract with one Jose Romo whereby, under that contract, Jose Romo manufactures brick for A. C. Grabe and A. C. Grabe pays Romo so much per thousand for the manufacture of those brick; that A. C. Grabe does not employ any men or any laborers of any kind and did not
employ Andres Castro at any time and had no control over Castro or his conduct, or his services at any time, or his labor, and that Andres Castro was employed by Jose Romo as an independent contractor and that, therefore, Wm. A. Grabe, nor A. C. Grabe are liable for any injury that might have been caused Castro."
A. C. Grabe then was sworn as a witness, and was examined and cross-examined in regard to the matter. No further oral testimony was taken, apparently, but there was in evidence before the commission the report first made and signed by A. C. Grabe as above referred to, various reports from the attending physician, and certain insurance policies and reports thereon. These policies for the period of two or three years before the accident all showed the insured as "Grabe Brick Company, A. C. Grabe," or "Grabe Brick Company, A. C. Grabe, Pro.," and the pay-roll audit on one policy was signed by A. C. Grabe.
There is no dispute as to the extent of the injury nor the amount of the award. The first contention of petitioner is that the commission has no authority to make an award against A. C. Grabe personally for the reason that he had never been served with any notice of the hearing, or any pleading or claim upon which the award was made, nor was he granted an opportunity to make defense to the proceedings.
It appears conclusively from the record that A. C. Grabe personally reported the accident; that at the hearing held September 13th he was both present and represented by his attorney; that at that time through his attorney he set up a defense as against [38 Ariz. 326] any award being made against him, and testified in regard to the matter. To hold that under such circumstances he did not have notice of the time and place of the hearing, and that the commission therefore had no jurisdiction to enter an award against him, would be hypertechnical in the extreme. Section 1403, Revised Code of 1928, reads as follows: "Order not void for technical omission. A substantial compliance with the requirements of this article shall be sufficient to give effect to the orders of the commission, and they shall not be declared inoperative, illegal, or void for an omission of a technical nature." We are of the opinion that petitioner by participating in the proceedings with full knowledge of the nature thereof waived any formal notice of the hearing, if, indeed, the same was required, and that the commission had jurisdiction as against him to determine the issues before it. Merchants Heat & Light Co. v. J. B. Clow & Sons, 204 U.S. 286, 51 L.Ed. 488, 27 S.Ct. 285.
The second question, and the vital one, is wether or not Castro at the time of his employment was or was not an employee of Grabe within the provisions of section 1418, Revised Code of 1928, which, ...