H. H. ALEXANDER, Petitioner,
JOHN ALEXANDER, ARIZONA ASPARAGUS FARMS, LTD., and THE INDUSTRIAL COMMISSION OF ARIZONA, Respondents
APPEAL by Certiorari from an award of the Industrial Commission of Arizona. Award set aside.
Mr. C. C. Mowbray, for Petitioner.
Mr. Don C. Babbitt and Mr. Howard A. Twitty, for Respondents.
[51 Ariz. 270] LOCKWOOD, J.
H. H. Alexander, hereinafter called petitioner, filed a petition with the Industrial Commission, hereinafter called the commission, seeking compensation for an injury which he alleged arose out of an accident which occurred during and in the course of his employment by Arizona Asparagus Farms, Limited, hereinafter called respondent.
The commission made an award denying petitioner compensation, and upon rehearing affirmed the award with the following findings:
[51 Ariz. 271] "1. That the above named applicant, while employed in the State of Arizona, sustained an injury by accident arising out of and in the course of his employment on September 21, 1935.
"2. That at the time of said injury, the above named applicant was not an employee of the Arizona Asparagus Farms, Ltd.
"3. That at the time of said injury, the above named applicant was an employee of John Alexander.
"4. That at the time of said injury the above named applicant, and John Alexander, the defendant employer, were not subject to the terms of the Workmen's Compensation Law or to the jurisdiction of this Commission, by reason of the fact that said employer did not have three or more persons regularly employed."
Whereupon the matter was brought before us for review.
The extent and nature of the injury is not in dispute, it being admitted that petitioner's leg was very seriously damaged while he was engaged in the operation of an ensilage cutter upon the premises of respondent. The real question in issue is whether or not petitioner at the time of his injury was an employee of respondent or of one John Alexander. It is the position
of respondent that it had entered into a contract with John Alexander for the cutting of certain asparagus growing upon its premises, and that as such independent contractor he employed petitioner to assist in the actual work, and while so engaged the latter received his injury. It is the contention of petitioner that respondent had arranged with John Alexander to do the work in question as its employee, and not as an independent contractor, and that petitioner, who was employed by John Alexander to operate the ensilage cutter, therefore came within the terms of the Compensation Law as an employee of respondent. If John Alexander was an independent contractor, it is admitted that no award may be made in favor of petitioner. If, on the other hand, John Alexander was an [51 Ariz. 272] employee of respondent, it is also agreed ...