Arizona-Hercules Copper Co. v. Crenshaw

• Decision Date: 28 November 1919
• Docket Number: Civil 1701
• Parties: THE ARIZONA-HERCULES COPPER COMPANY, a Corporation, Appellant, v. JOHN W. CRENSHAW, Administrator of the Estate of MANUEL SEGURA, Deceased, Appellee
• Court: Arizona Supreme Court

184 P. 996

21 Ariz. 15

THE ARIZONA-HERCULES COPPER COMPANY, a Corporation, Appellant, v. JOHN W. CRENSHAW, Administrator of the Estate of MANUEL SEGURA, Deceased, Appellee

Civil No. 1701

Supreme Court of Arizona

November 28, 1919

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge. Affirmed.

STATEMENT OF FACTS.

On the eighteenth day of February, 1918, the appellee, John W Crenshaw, as administrator of the estate of Manuel Segura sued the appellant, the Arizona-Hercules Copper Company, a corporation, in the superior court of Maricopa county, in damages, for personal injuries resulting in the death of his intestate. The suit was brought under the Employers' Liability Law of the state (Civ. Code, 1913, pars 3153-3162), and upon the theory that the appellant was engaged in the hazardous occupation of mining, and that appellee's intestate was an employee of the appellant as a miner at the time of his death; that on the eighteenth day of September, 1916, the said intestate was killed by an unavoidable accident arising out of and occurring and happening in the course of the said employment and whilst he was engaged in work, labor, and service for the appellant and that said accident was due to the condition and conditions of such occupation and employment, and occurred and happened without any fault upon the part of the said intestate. On April 2, 1918, the appellant filed its answer to the appellee's complaint, and after admitting its corporate existence and that it was engaged in the hazardous occupation of mining, denied each and every allegation in the complaint contained, except those expressly admitted, and furthermore pleaded as separate and affirmative defenses, that if the deceased came to his death as in the complaint alleged, it was by reason of his own carelessness and neglect, and that the deceased had assumed the dangers, risks, and hazards of the business, and further pleaded that the deceased was in the employment of another.

The case was tried to a jury and resulted in a verdict anj judgment for the appellee for the sum of $5,000 damages. The appellant brings the case here on appeal, assigning a number of errors. Those deemed material or important are considered in the opinion.

Mr. W. L. Barnum and Mr. George J. Stoneman, for Appellant.

Messrs. Alexander & Christy, for Appellee.

OPINION

BAKER, J. (After Stating the Facts as Above.)

The appellant, in one of its assignments of error, complains of the ruling of the lower court in refusing to grant its motion, made at the closing of all the evidence in the case, to direct the jury to return a verdict in its favor, on the ground and for the reason that the evidence was insufficient to prove that the appellee's intestate was in the employment of the appellant at the time of his death, but that, on the contrary, the evidence showed that the said intestate was in the employment of one Henry Nolte, an independent contractor. This assignment presents the controlling question in the case for determination and necessarily requires of us an examination into the state of the evidence. As to the law, it is frequently said in the cases that --

" . . . To draw the distinction between independent contractors is often difficult, and the rules which courts have undertaken to lay down on the subject are not always simple of application."

But we do not think that the legal principles applicable to the facts of the present case are greatly involved or difficult to comprehend.

In the recent case of Swansea Lease, Inc., v. Molloy, 20 Ariz. 531, 183 P. 740, the writer of the present opinion had occasion to examine the question, and many authorities from different jurisdictions are there cited. There is a vast amount of learning upon the subject, and the collation of authorities, as found in the notes attached to the following cases, furnish an abundance of authorities upon the subject. Richmond v. Sitterding, 101 Va. 354, 99 Am. St. Rep. 879, 65 L.R.A. 445, 43 S.E. 562; Messmer v. Bell etc. Co., 133 Ky. 19, 19 Ann. Cas. 1, 117 S.W. 346; Cockran v. Rice, 26 S.D. 393, Ann. Cas. 1913B, 570, 128 N.W. 583; Bodwell v. Webster, 98 Neb. 664, Ann. Cas. 1918C, 625, 154 N.W. 229. In Swansea Lease, Inc., v. Molloy, supra, we said:

"The true test of a contractor would seem to be that he renders service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. The one indispensable element to his character as an independent contractor is that he must have contracted to do a specified work, and have the right to control the mode and manner of doing it. [Quoting] 1 Shearman & Redfield on Negligence, (6th ed.), par. 164; [citing] Hexamer v. Webb, 101 N.Y. 377, 385, 54 Am. Rep. 703, 4 N.E. 755."

Reverting to the record, we find from a brief review of the primary facts that the unfortunate man (Manuel Segura) came to his death in the manner following: Several miners, among whom was the deceased, were engaged in sinking a shaft on the appellant's mine. In the progress of the work, the men would be lowered to the bottom or raised to the mouth of the shaft by means of a heavy iron bucket with a bail, attached to a steel cable, one end of which was fastened to the bail of the bucket and then carried over a sheave-wheel which was set into a gallows frame directly over the mouth of the shaft; the other end of the cable was attached to and wound around a drum attached to a hoist which was operated by a gasoline engine. The men would ride the bucket in being lowered to their work or when being raised to the mouth of the shaft after quitting work. On the eighteenth day of September, 1916, the deceased and several other miners were upon the bucket and were being lowered in the shaft to their work when the end of the cable became by some means detached from the bail of the bucket, at a point in the shaft about two hundred feet from the bottom, and the bucket and the men were precipitated or thrown to the bottom of the shaft. Four of the men were killed by the accident, including the appellee's intestate. That the accident happened unmixed with any negligence or want of care upon the part of the deceased is not controverted or questioned by the evidence.

It would be difficult to conceive, by any flight of the imagination, a case that would more completely fall within the letter and spirit of the Employer's Liability Law of this state than the case made by this uncontradicted evidence, providing, only, that the deceased was an employee of the appellant at the time of the accident. That law is a just and humane law. It was adopted pursuant to a constitutional mandate, and was enacted to carry out the legislative purpose that accidents sustained by those who do the work of an industry should be borne by the industry and paid out of the trade product, and not left to fall harshly upon the disabled worker, or his dependent widow and children. It supersedes, and entirely supplants, the historic concept of the common law, and all former statutes, that the right of recovery for industrial accidents can only arise from a breach of the master's duty as to care and safeguards. Hitherto the master could only be made to respond in damages when his servant was injured through his (master's) fault. The new concept is that the master must answer, regardless of his (master's) fault. This new and different scheme and basis of indemnity for industrial accidents should be remedially applied by the courts, with a view of bringing within the beneficial operation of the law all workers whose accidental injuries are the result of inherent occupational risks and hazards, rather than with the view of excluding from the operation and protection of the law workers who justly and fairly fall within its provisions. Arizona Copper Co. v. Hammer, 250 U.S. 400, 63 L.Ed. 1058, 39 S.Ct. 553; In re Rheinwald, 168 A.D. 425, 153 N.Y.S. 598.

The question is: Was the deceased, Manuel Segura, in fairness and fact, an employee of the appellant at the time of his death? The answer to the query depends upon what was the relation of Henry Nolte to the appellant. Was Nolte merely the agent of the appellant, or was he an independent contractor? The two questions are so correlated that the determination of one determines the other. Nolte put the deceased at work in the shaft; he hired him. This fact is conceded in the record. Nolte was engaged in sinking the shaft in which the deceased lost his life, under a written contract with the appellant hence the importance of considering the contract. It is not practical to set the contract out at length, and we shall deal only with the stipulations found therein which tend to throw light upon the question. Counsel for the appellant strenuously contend that the contract upon its face shows that Nolte was an independent contractor. In this contention, we think counsel are clearly mistaken. The contract was for sinking a three-compartment shaft, 15 feet 10 inches, by 8 feet 8 inches, in the clear, at the agreed price of $35 per foot. The contract does not fix any definite number of feet that the shaft was to be sunk. No time is fixed within which the work was to be completed. Nolte was to furnish all necessary labor, and was to carry on the work of sinking the shaft under the instructions of the appellant's foreman. The fact that the contract does not fix the number of feet that the shaft was to be sunk left it optional with the appellant to close down the work at any time without breach of the contract. So, too, Nolte had the right to quit work at any time without breaching the contract. At most, the contract was in legal effect...