JAMES G. HAMMELS and NELLIE M. HAMMELS, His Wife, VINTON HAMMELS, HELEN H. BENNETT, and JOSEPHINE E. KNIGHT and J. J. KNIGHT, Her Husband, Doing Business as a Joint Enterprise Under the Firm Name and Style of "HAMMELS' TRACT," Appellants,
CHARLES E. BRITTEN, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. E. G. Frazier, Judge. Judgment affirmed in part and reversed in part.
Messrs. Struckmeyer & Flynn, for Appellants.
Mr. George M. Sterling and Mr. Harold J. Janson, for Appellee.
[53 Ariz. 113] LOCKWOOD, J.
Charles E. Britten, hereinafter called plaintiff, brought suit against James G. Hammels and Nellie M. Hammels, his wife, Vinton Hammels, Helen H. Bennett and William Bennett, her husband, and Josephine E. Knight and J. J. Knight, her husband, doing business as a joint enterprise under the firm name and style of "Hammels Tract," to recover damages for injuries which he claims resulted from an accident arising out of and in the due course of his labor, services and employment for the above-named parties, and due to a condition or conditions of the employment. He alleged that his employers as aforesaid had failed to comply with the provisions of section 1422, Revised Code 19i8, in that they had not provided for compensation for their employees in the manner directed by such section, and that he, therefore, elected to sue for damages pursuant to section 1433, Revised Code 1928.
The case was dismissed as to William Bennett, it appearing that he was in no way the employer of plaintiff, [53 Ariz. 114] and the matter was tried before a jury as to the other defendants, which jury returned a verdict against all of such defendants in the sum of two thousand dollars, and the matter is before us on appeal.
In the very recent case of Robles v. Preciado, 52 Ariz. 113, 79 P.2d 504, we have had under discussion the nature of an action such as this, and have held that it is essentially one for negligence, and governed by the usual rules of law which apply to such actions, except in so far as the statute has specifically modified it.
There are four assignments of error which raise two questions for our consideration. The first is that the undisputed evidence shows that the only employer of plaintiff at the time of his accident was J. J. Knight, and that judgment should, therefore, have been rendered in favor of all of the defendants except the Knights. This requires our consideration of the evidence. Taken in the strongest manner in behalf of plaintiff, it may be stated as follows:
James G. Hammels and Nellie M. Hammels, were, respectively, the father and mother of Vinton Hammels, Helen H. Bennett and Josephine E. Knight. These parties were jointly interested in three subdivisions of real estate which, although having separate legal identities, were commonly referred to as the "Hammels Tract." Different portions of these subdivisions had been sold to a number of parties, among whom was plaintiff, the sale to many of them being upon time payments. During the depression, which has so long existed in Arizona, a number of these parties were unable to meet the payments on the purchased premises as the same became due, and the owners of the Hammels tract, not wishing to cancel the contracts of purchase, arranged a method whereby payment could be made by the purchasers, in part at least, in labor. [53 Ariz. 115] The way in which this plan worked was as follows: J. J. Knight, the husband of Josephine E. Knight, acted as manager of the tract. In addition thereto, he, as well as the other defendants, had outside individual properties and interests, owned and operated separately and in no way as a joint enterprise. Whenever it became necessary to have any work done, either upon the joint enterprise -- the Hammels tract -- or for any of the individual enterprises of any of the defendants, Knight would notify the parties who had purchased lots in the Hammels tract and were delinquent in their payments, that he had work for them, and they would come to him and perform labor wherever he told them to, either upon the tract or on the property of the individual defendants. Payment for the labor was made by a credit upon the delinquent installments due on the purchase price of the Hammels tract lot, whether the work had been performed on such tract or for any of the individual defendants, but when an accounting was held between the owners of the tract, if any of the work had been done for one of them individually, that fact was taken into consideration in determining the amount which was to be drawn by each from the profits and proceeds of the common enterprise, and deducted accordingly. Plaintiff did not know of the method in which the accounts and labor were handled as aforesaid, but believed that he was working for the joint enterprise because of the fact that he knew his wages were credited on what he owed the enterprise, and Knight, who directed him where to work, was its manager. On the day that the accident which is the subject of this action occurred, plaintiff was notified that there was work available, and he, together with a number of others, reported to Knight. They were told to go to a certain tract of land some distance from the Hammels tract and load [53 Ariz. 116] an automobile trailer with broom corn, and then take the corn to the dairy ranch of Knight, and unload it. This dairy ranch was the separate property and enterprise of the Knights, and the other defendants had no interest whatever therein, nor in the work which was to be done, the fodder being hauled as food for the cattle belonging to the dairy. While the fodder was being hauled, the driver of the car hauling the trailer, an employee of Knight named Latta, turned a corner so sharply and swiftly that plaintiff, who was riding on the trailer, slipped therefrom and fell, injuring his hand in such a manner that he suffered a permanent partial disability.
It is not disputed on this appeal that plaintiff suffered injuries for which he was entitled to recover under the provisions of section 1433, supra, nor is it contended that the amount of two thousand dollars awarded him by the jury was excessive. It is, however, urged most strenuously that on the aforesaid state of facts his remedy was against the Knights, his real employers, and that he had no cause of action against the other defendants.
There can be no doubt from these facts that plaintiff's real employer was Knight. He was doing work for Knight individually, for which the latter ultimately paid, although the payment was originally made
by a credit on his contract with the owners of the Hammels tract. The situation may be illustrated as follows: A owes B, a grocer, a sum of money for goods purchased; C says to A, "If you will do some work for me, I will arrange to have B give you credit on your indebtedness for the value of the work which you have done, but will not pay you in cash." Under such circumstances A performs the work for and is the employee of C, and not of B. It also appears, however, that plaintiff when he went to work did not know of [53 Ariz. 117] the arrangements between the defendants above set forth, nor for whom he was working, but did know that his wages were to be credited upon his debt to the ...