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Ocean Accident & Guarantee Corporation, Ltd. v. Kennison

Supreme Court of Arizona

October 30, 1933

OCEAN ACCIDENT & GUARANTEE CORPORATION, LIMITED, Insurance Carrier, Petitioner,
v.
CHARLES D. KENNISON, Compensation Applicant, THE INDUSTRIAL COMMISSION OF ARIZONA, Respondents

APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award set aside.

Mr. C. H. Young (Mr. Paul J. Feehan,of Counsel), for Petitioner.

Mr. Don C. Babitt and Mr. D. L. Cunningham, for Respondent Commission.

OPINION

Page 114

[42 Ariz. 350] ROSS, C. J.

Charles D. Kennison was awarded compensation for accidental injuries sustained while working for the General Motors Acceptance Corporation, hereinafter referred to as the corporation. The Industrial Commission found he was an employee and that his injury arose out of and in the course of his employment. The Ocean Accident & Guarantee Corporation, Limited, insurance carrier, moved for a rehearing on the ground that the evidence conclusively showed that Kennison was an independent contractor and not an employee of the corporation at the time of his injury. Upon the rehearing the award was affirmed. The record is before us upon a writ of certiorari issued at the instance of the insurance carrier.

The evidence bearing upon the character of Kennison's employment consists of the testimony of Kennison and G. A. Brelin, Phoenix manager of the corporation, at the original hearing and at the rehearing; and, while in detail there are some discrepancies, in the main and in its legal effect their testimony at both hearings is the same. Brelin was not antagonistic to Kennison's claim for compensation, but rather friendly, we think, because he announced at the first hearing that the corporation was not appearing to defend against the claim, but "just here to take a record of what transpired."

The insurance carrier was represented at the first hearing by its local agent, Jack Barr.

Kennison appeared for himself.

[42 Ariz. 351] The referee stated before any testimony was taken, and repeated it several times during the taking of testimony, that the issue was whether Kennison was an independent contractor or an employee at the time of his injury.

The character of the corporation's business was such that the frequent occasions arose when it was necessary for it to repossess from purchasers, or their assigns, automobiles that had been sold on conditional contracts. Trips for this purpose into many parts of the country, near and far and extending over a period of some two years, had been made for the corporation by Kennison. He was not included in the corporation's liability insurance and was not carried on its regular pay-roll as an employee, but made and entered into a separate contract or engagement for each trip he took for the corporation.

He says that when the corporation informed him where a repossessed automobile was he would figure up the expenses of the trip both ways and add thereto $4 per day for the estimated time required to make the trip, and submit the statement to the corporation, which would give to him a check for the amount; that he would then go and get the car and on his return render a statement of the expenses of his trip to the corporation, and, if the expenses and his per diem of $4 were less than the amount advanced, he would return to the corporation the balance, but if the expenses and the per diem were more than the sum advanced, the corporation would pay him such additional sum as necessary to make his per diem $4. This kind of arrangement, we understand, was the one under which most of his trips were made for the corporation.

The trip in which he was hurt was one to Kansas City and return. Concerning the arrangement to make this trip he testified as follows:

[42 Ariz. 352] "Q. Now on this particular trip what was the arrangement? A. That was for a flat rate -- $75.00 for the trip.

"Q. $75.00 for the trip and out of ...


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