APPEAL by Writ of Certiorari from award of Industrial Commission. Award set aside.
Messrs. Moeur & Moeur, for Petitioner.
Mr. Burt H. Clingan and Mr. H. A. Elliott, Special Counsel, for Respondents.
[39 Ariz. 443] LOCKWOOD, J.
This matter is brought before us by the Fox West Coast Theatres, Inc., a corporation, hereinafter called petitioner, to set aside an award made by the Industrial Commission of Arizona, hereinafter called the commission, in favor of one W. S. Larcom. The record shows the facts to be as follows:
Some time in 1929 petitioner acquired various moving picture theaters in Arizona, and proceeded with the repair and remodeling of the same. One of these theaters was located in Nogales, and on December 17th, Larcom was injured while working thereon. The first information regarding the injury was communicated to the commission on the twenty-eight day of April, by Dr. W. F. Chenoweth, Larcom's attending physician in Nogales, in a report which named the Fox Film Theatre as the employer. This report was followed by considerable correspondence between the commission, the physician, petitioner, Larcom, and Home Accident Insurance Company, a corporation, hereinafter called the company, which latter, it was assumed at the time by all parties, was the insurance carrier of petitioner against accidents of the nature involved herein. The principal purpose of this correspondence was to determine who had been Larcom's employer and upon whom, if anyone, lay the responsibility to compensate him for the injury.
Under date of August 20th, Larcom filed with the commission a formal claim for compensation, naming [39 Ariz. 444] petitioner as his employer at the time of the injury. On August 29th the commission made an award in his favor against petitioner and the company, the latter two being duly notified thereof. The company filed an application for a rehearing with the commission, which was granted and the hearing set for October 27th, both petitioner and the company being served with notice thereof. The company was duly represented at such hearing by counsel, but petitioner was not represented in any manner. On October 30th an amended award was made, finding that Larcom was in the employ of petitioner, but also finding that the company was not liable, for the reason that its policy of insurance held by petitioner did not cover the work in which Larcom was engaged. On November 10th petitioner applied for a rehearing, which was set for December 30th, at which hearing new evidence was taken and it was ordered that the evidence taken at the hearing of October 27th and that of December 30th should both be considered as part of the record upon which an award would be made. Petitioner protested against including the evidence taken October 27th on the ground that it was not represented at such hearing; that it had applied for a copy of the transcript of the evidence taken thereat, and offered to pay for the same, but had been refused it on the ground that it was not a party to the proceedings, nor interested therein, and therefore not entitled to a copy; and that it was unjust to hold it bound by evidence taken at a hearing when it was not represented and which it could not obtain a reasonable time before the hearing.
On January 30th the commission entered its decision on the rehearing, making an award which found on the vital issue as follows:
"That on or about December 17th, 1929, Fox West Coast Theatres, a corporation, was engaged in the repair, reconstruction and renovation of a theatre in [39 Ariz. 445] Nogales, Arizona; some of said work was performed directly by said Fox West Coast Theatres, a corporation, and other of said work was performed by contractors over whose work they retained supervision and control. Douglas Layman was such a contractor and had a contract with said Fox West Coast Theatres, a corporation, for the decoration of said Nogales Theatre. Said Fox West Coast Theatres, a corporation, retained supervision and control over the work performed by said Douglas Layman. Said Douglas Layman was not an independent contractor, and his employees are, within the meaning of the Workmen's Compensation Law, employees of
Fox West Coast Theatres a corporation. Said applicant, W. S. Larcom, was employed by said Douglas Layman and was an employee of the Fox West Coast Theatres, a corporation, within the meaning of said compensation law."
The first question is as to whether the commission was entitled to consider at the hearing made December 30th the record of the proceedings of October 27th. We have previously held that, while the commission is not a court, yet in making awards it acts judicially. Doby v. Miami Trust Co., ante, p. 228, 5 P.2d 187; Alabam's Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658. And while it is not bound by the formal rules of procedure obtaining in courts, it is nevertheless bound by the fundamental principles of justice and substantive law. Doby v. Miami Trust Co., supra. One of these principles is that every person against whom a judgment may be rendered should at all reasonable times and manners be entitled to have access to and knowledge of any evidence which has been offered to be used against him. It appears to us that this principle was violated by the commission in considering at the hearing of December 30th the evidence taken October 27th, after having denied petitioner's request for a copy of the reporter's transcript made on the latter date. Generally speaking, any interested party may have a [39 Ariz. 446] copy of any public record upon paying the proper fees therefor. This is true regarding the reporter's transcript in any proceeding in the superior court, and we see no reason why the same rule should not apply to proceedings of the commission. Section 3709, Rev. Code 1928. Instead, however, of setting aside the award and sending the case back upon a point which is, after all, one of procedure, and which in this case does not affect the legal principles ultimately governing the matter, we prefer to decide it on a rule of substantive law which it appears to us is shown sufficiently by the record.
In our opinion, the vital issue is whether or not Larcom was at the time of his alleged injury in the employ of petitioner or in the employ of an independent contractor. The evidence shows affirmatively that one Douglas Layman, who was at the time a painting contractor in California, entered into a written contract with petitioner on the 20th of November, 1929, for the decorating and painting of the Nogales theater in Nogales, Arizona, according to certain specifications and plans, for the flat sum of $1,250. The general conditions of the contract provided that the contractor should "furnish all labor and materials for the work." Layman also had similar contracts for decorating petitioner's theaters in Bisbee, Douglas, and Lowell, Arizona. In pursuance thereof he went to Arizona, taking some men with him from California, and employing others in the different localities where the work was to be done, dividing his time between the places named until the work was completed. In Nogales he had a foreman named Martin Obzina. Larcom performed all his work under the direct instructions of Obzina, but was paid regularly in cash by Layman. No officer or employee of petitioner, so far as the record shows, ever had anything to do with the ...