CAPITAL CONSTRUCTION COMPANY, a Corporation, and ERNEST W. EVERLY, an Individual Trading as ERNEST W. EVERLY Acting as Joint Contractors and Co-Aventurers and EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LIMITED, Petitioners,
THE INDUSTRIAL COMMISSION OF ARIZONA; RAY GILBERT, EARL G. ROOKS and FRED E. EDWARDS, as Members of and Constituting the Industrial Commission of Arizona; and ROBERT W. EVANS, Respondents
APPEAL by certiorari from an award of The Industrial Commission of Arizona. Award vacated.
Messrs. Jennings & Salmon and Mr. Ozell M. Trask, for Petitioners.
Mr. H. S. McCluskey and Mr. Fred O. Wilson, for Respondents.
[61 Ariz. 215] ROSS, J.
Robert W. Evans, claiming compensation for an injury he sustained while doing some work for the Capital Construction Company and Ernest W. Everly, on April 17, 1943, presented his claim to the Industrial Commission, and after taking evidence for and against such claim, the Commission made an award to him of $1,022.01 for temporary total disability and a monthly life award of $39.33 from and after October 10, 1942, together with medical, surgical, hospital and nursing benefits and an artificial arm. The Construction Company and Everly being dissatisfied with the award have caused the record to be certified to this court for review. The contentions of the parties will appear as we proceed.
We state the essential facts as follows: The Capital Construction Company and Ernest W. Everly took a contract from the United States Government to construct airport Landing Field No. 4, near Casa [61 Ariz. 216] Grande, Arizona. The petitioner, Employers' Liability Assurance Corporation, Limited, was the insurer. The contractors employed the firm of Sanders & Evans, a co-partnership, to do certain of the work called for by their contract. The runways of the landing field according to plan called for a sealed coat of light sand or gravel mixed with hot oil or asphalt material. The sand or gravel was brought from a source nearby and piled on the edge of the field in a stock pile, and when needed was loaded on trucks with a steam shovel and driven to where the hot oil was being sprayed on runways. The sand or gravel passed through a spreader box on the back of the truck which followed the oil spray until the seal coat was complete. Sanders & Evans verbally contracted with the contractors to furnish the sand or gravel for runways in stock piles for $1.95 per ton. Later, they contracted verbally to deliver the gravel or sand from stock piles to spreader box on runways for 75" per ton. Sanders & Evans did the work through their own employees and equipment. The wages of the employees
were paid by the contractors and charged against contract price. The employees were insured in Workmen's Compensation policy of the contractors but premiums were charged against Sanders & Evans. Sanders & Evans' compensation out of which they paid all above expenses consisted of $1.95 per ton for sand or gravel delivered in stock piles, and 75" per ton for delivery from stock piles to spreader.
On April 17, 1943, about 9:15 p.m. the superintendent of the contractors "instructed him (Evans) to remove his shovel as quick as he could as we wanted all the equipment off the field that evening ready for construction engineer's final inspection Saturday." Sanders & Evans at this time had removed all their equipment (except the shovel) to another [61 Ariz. 217] job they had at Gila Bend. It was while Evans was endeavoring to load the shovel on a truck to be taken away as "instructed" that the shovel fell on him inflicting injuries for which he asks compensation.
It is the contention of contractors that Sanders & Evans were independent contractors and not their employees. The contracts were oral and the evidence on that question was all oral. The Industrial Commission under the evidence construed the oral contract to mean that Sanders & Evans were employees and not independent contractors. While I doubt if the evidence properly considered and construed supports the Commission's finding in that regard, I feel certain the Commission was without power or authority under the law and facts to award compensation to Evans as it did.
Section 56-952, Arizona Code 1939 (Workmen's Compensation Law), fixes the rule for ascertaining compensation to be paid for injuries to employees growing out of and in the due course of their employment. Such section lays down rules by which to calculate the compensation for injuries to employees. If the employee has been working continuously for thirty days his "average monthly wage" during that period is the basis of his compensation. If the employee has not been continuously employed for thirty days immediately preceding his injury, his "average monthly wage" shall be such sum as having regard to his previous wage, or the wage of employees in the same or most similar employment in the same or neighboring locality as reasonably represents his monthly earning capacity. If the injured employee is working under a contract guaranteeing the amount per diem or per month the compensation is on the basis of a guaranteed wage, paid either on a per diem or monthly basis.
[61 Ariz. 218] Thus there are three classes of employees who are to have compensation under Section 56-952 for injuries sustained in their employment. In each case the rule for calculating the compensation is given, none of which has application to the facts here. Sanders & Evans were not employees of the Construction Company & Everly. Their agreement was to stock pile the sand or gravel for $1.95 per ton and to deliver the sand and gravel from stock pile to spreader box for 75" per ton, all at their own expense. Sanders & Evans were not working on a wage basis, either per diem or by the month or otherwise. They were to do certain work at a certain price. They might make wages or they might not. They might loose on their contract. Their compensation was for a finished job which might amount to a considerable sum or nothing. If they took the work for too little, the result would be a loss. Employees run no such risk. Their wage is fixed by contract or by law. The law fixes no other contract for Sanders & Evans than the one they, themselves, made.
Evans' contention that he was a shoveler and should receive the compensation of a shoveler is without any basis. In fact as the owner and employer he looked after keeping the shovel in repair, but never operated it. The evidence is that one Frank Payne was the shovel operator. Webster defines a shoveler as "A laborer who works with a shovel." It would be just as sound to call a person who moves a piano, a pianist, as to call a person who helps to move a steam shovel, a shoveler. There is an absolute lack of evidence that he ever operated a steam shovel. The evidence shows that he helped move it.
I seriously question the soundness of the Industrial Commission's conclusion that Evans, when he was hurt, was engaged in the completion of his contract. [61 Ariz. 219] The referee questioned ...