WEST CHANDLER FARMS CO.
INDUSTRIAL COMMISSION et al
Appeal by Certiorari from Award of Industrial Commission.
Proceeding under the Workmen's Compensation Law by Lowell E. Webb, a minor, and others, opposed by the West Chandler Farms Company, employer. From an award by the Industrial Commission of Arizona in favor of the applicant, the employer appeals by certiorari.
Award set aside.
Moeur & Moeur and Charles N. Walters, all of Phoenix, for petitioner.
H. S. McCluskey and John R. Franks, both of Phoenix, for Industrial Commission.
Guynn & Twitty, of Phoenix, for respondent Trout.
Jennings, Salmon & Trask, Henry S. Stevens, and J. A. Riggins, Jr., all of Phoenix, amici curiae.
Morgan, Judge. Stanford, C. J., and La Prade, J., concur.
[64 Ariz. 385] During the year 1944 petitioner was engaged in operating and managing the business enterprises of George Taylor & Sons, consisting of farming and cattle raising. In the spring of that year it entered into a verbal agreement with James G. Trout, providing that Trout, who owned a hay baler, would furnish it, his own crew and equipment, and bale all hay suitable on the Taylor ranches, for $ 4 per ton. This was later changed to provide a bonus of 25 cents per ton. Trout was allowed the use of certain houses on the ranch where the crew lived and were fed. One baler being insufficient, petitioner delivered a second baler to Trout under a verbal conditional sales agreement, and the latter operated both balers, furnishing all equipment and supplies. He hired all employees and paid their compensation and other expenses out of the contract price. Under the agreement the hay was not to be baled when too green or too dry. Bales were to be approximately 150 pounds in weight.
About July first, Trout employed the applicant, Lowell E. Webb, a boy of the then age of fourteen and one-half years, as the baler tractor operator, his compensation being 25 cents for each ton baled by the baler upon which he was working. Trout spent little time on the job. George Taylor, representing the petitioner, visited the operation frequently, and at times almost daily. He objected to the manner in which the work was being done. Sometimes he was there two or three times a day. The evidence disclosed that Taylor gave orders respecting the stacking of bales, their packing and wiring, gave directions to tighten the baler, and the effect of Trout's testimony is that petitioner had the right to terminate the work at any time. A. E. Coplan, petitioner's foreman, stopped the baler on two or three occasions, and also gave instructions with respect to how the work was to be done, when to start and when to stop, as to the piling of bales, and other matters.
On August 5th, while operating the tractor, applicant was injured by a pitchfork hurled from a moving belt, the tine of which punctured one eye, resulting in the loss of its sight. At the time of this accident petitioner held a policy of insurance with the Industrial Commission of Arizona, covering all of its employees protected by the Workmen's Compensation Law, but which contained the following provision:
"Independent contract plowing and other independent contract work is not covered under this policy unless same is requested."
[64 Ariz. 386] Petitioner considered Trout an independent contractor. No premiums were paid by it on Trout and the baling crew.
The applicant personally and through his guardian duly elected to pursue his remedy under the Workmen's Compensation Law. Claim filed by applicant with the commission against petitioner and others was resisted by petitioner on the ground that it was not his employer, since applicant was an employee of Trout, an independent contractor. The commission rejected this claim and entered an award against petitioner as the defendant employer. The petitioner then offered to pay to the commission premiums due on Trout and his baling crew, on the theory that they were its employees as found by the commission, but upon the understanding that the commission, as insurance carrier, would assume payment of the award. This offer was rejected by the commission. From the award and from denial of petitioner's motion for rehearing, petitioner has brought this appeal.
The commission made rather elaborate findings, but we think it necessary to notice only the following which, in the interest of brevity, we paraphrase:
(3) Applicant at the time of the accident was employed in Arizona upon the premises of petitioner in the regular and usual course of its business, and it had in its service applicant and three or more workmen employed in the use of ...