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Johnson v. Industrial Commission

Supreme Court of Arizona

November 16, 1960

Winford S. JOHNSON, Petitioner,
v.
INDUSTRIAL COMMISSION of Arizona and Yuma County Fair, Inc., Respondents.

[88 Ariz. 355] Cameron & Varga, Yuma, for petitioner.

Frances M. Long, Phoenix, for respondent Industrial Commission; Donald J. Morgan, James D. Lester, Phoenix, Edward E. Davis, Glendale, and C. E. Singer, Jr., Phoenix, of counsel.

STRUCKMEYER, Chief Justice.

Petitioner Winford S. Johnson was a prisoner in the Yuma County Jail on the 8th Day of August, 1958. Respondent Yuma County Fair, Inc., a non-profit private corporation, applied to the Yuma County Sheriff for prisoners to assist in dismantling some buildings near Dateland, Arizona. The Sheriff of Yuma County placed petitioner and seven other men in respondent's custody, who was to have their full control until returned to jail. Respondent provided petitioner, along with other prisoners, food, lodging, sundries and cigarettes. All prisoners were to be given three days credit on their sentences for each day worked for the Yuma County Fair, Inc. The work was to be under the direct supervision and control of the Executive-Secretary of respondent corporation, Frank Deason. No guard or officer from the Sheriff's office accompanied the prisoners to the work site. While petitioner was on the job under the direction and supervision of the Yuma County Fair, Inc. he fell from the refters of one of the buildings that was being dismantled. As a result of the fall, onto a concrete floor, petitioner sustained a fracture of the middle phalanx of the middle finger and a mild minimal compression fracture of the eighth dorsal vertebra. The Yuma County Fair, Inc. carried an Industrial Commission Insurance Policy at the time of the accident, but it did not include the prisoners from the county jail in the list of employees periodically submitted to the Industrial Commission.

Petitioner filed his report of the injury on January 9, 1959, stating the date of injury to be August 17, 1958. On January 20, 1959 the Industrial Commission made findings and award for non-compensable

Page 1022

claim. It was found that petitioner was not in the employ of the Yuma County Fair, Inc. at the time the sustained the above mentioned injuries. Application for [88 Ariz. 356] rehearing was made and a second hearing took place on May 12, 1959. The earlier award of the Industrial Commission was confirmed and petitioner brings the matter to this court by Writ of Certiorari.

This case presents the single question of whether a county prisoner, injured while on loan to a private corporation, is an employee within the meaning of the Workmen's Compensation Act of Arizona, and therefore entitled to compensation for injuries sustained during the time he was so employed.

By statute, A.R.S. § 23-901, 'Employee', 'workmen' and 'operative' means:

* * *

* * *

'(b) Every person in the service of any employer subject to the provisions of this chapter, including aliens and minors legally or illegally permitted to work for hire, but not including a person whose employment is casual and not in the usual course of trade, business or occupation of the employer.'

The meaning and effect to be given the term 'employer' is set forth in A.R.S. § 23-902:

'Employers subject to the provisions of this chapter are the state, each county, city, town, municipal corporation, school district and every person who has in his employ three or more workmen or operatives regularly employed in the same business or establishment under contract of hire * * *.' (Emphasis supplied.)

By their own admission resondents had more than three workmen or operatives on the job. Hence the question of whether petitioner was an 'employee, workman or operative' and whether respondent was an 'employer' within the terms of the Workmens' Compensation Act necessarily depend on whether there can be found here an express or implied contract for hire.

The evidence is undisputed that respondent corporation exercised exclusive control over the prisoners. Frank Deason, Executive-Secretary ...


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