Griebel v. Industrial Com'n of Arizona

• Decision Date: 22 June 1982
• Docket Number: No. 1,CA-IC,1
• Citation: 650 P.2d 1252,133 Ariz. 270
• Parties: Walter H. GRIEBEL, Deceased, Eleanor E. Griebel, Widow, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Kathleen Rector (Dayton), Respondent Employer, No Insurance, Respondent Carrier. 2674.
• Court: Arizona Court of Appeals

Page 1252

650 P.2d 1252

133 Ariz. 270

Walter H. GRIEBEL, Deceased, Eleanor E. Griebel, Widow, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Kathleen Rector (Dayton), Respondent Employer No Insurance, Respondent Carrier.

No. 1 CA-IC 2674.

Court of Appeals of Arizona Division 1, Department C.

June 22, 1982.

Rehearing Denied July 26, 1982.

Review Denied Sept. 16, 1982.

Davis & Eppstein, P. C. by David C. Bartlett, Tucson, for petitioner.

James A. Overholt, Acting Chief Counsel, The Industrial Com'n of Arizona, Phoenix, for respondent.

Everett, Bury & Moeller, P. C. by J. Michael Moeller, Tucson, for respondent employer.

OPINION

EUBANK, Presiding Judge.

Petitioner Eleanor Griebel filed a claim for widow's benefits alleging that the death of her husband on March 6, 1980, was compensable under the Arizona Workmen's Compensation Act. Because no insurance carrier was involved, the Industrial Commission undertook the initial evaluation of petitioner's claim. An award was issued denying compensability. This award was protested, and formal hearings were held. On May 29, 1981, an award was issued denying compensation on the grounds that Mr. Griebel's employer was not covered by the compensation act. Alternatively, the administrative law judge found that Mrs. Griebel's claim was foreclosed because she had settled a claim for third party liability without approval of the Industrial Commission.

The record shows that Mr. Griebel was employed as a groundskeeper and handyman for the Morning Star ranch of Mr. and Mrs. Rector. After Mr. Rector's death, Mr. Griebel continued his duties at Morning Star, although Mrs. Rector had moved into a townhouse in the city. Mr. Griebel assisted Mrs. Rector with the moving, and also assisted Mrs. Rector's daughter when she moved to Phoenix. Since Mr. Griebel was such a fine groundskeeper and handyman, Mrs. Rector allowed him free reign in his upkeep of the Morning Star ranch, and occasionally requested his services at the other properties owned by the Rector family.

After Mr. Rector's death, Mrs. Rector had become engaged to Mr. Dayton, who is now her husband. Mr. Dayton was renovating an old ranch on a leased mining claim, and requested Mr. Griebel's assistance on an electrical problem. Mr. Griebel agreed to help, but on the third day of this project, he was killed in an automobile accident in transit from the Morning Star ranch. It is unclear whether Mr. Griebel's destination was the mining claim or Mrs. Rector's townhouse, but in any event, there is no question that Mr. Griebel was killed within the course and scope of his employment for Mrs. Rector. The only question for our consideration is whether Mrs. Rector was an "employer" of Mr. Griebel within the meaning and coverage of the Workmen's Compensation Act, A.R.S. § 23-902(A).

The administrative law judge correctly concluded that it was petitioner's burden to show the "employer" status of Mrs. Rector under A.R.S. § 23-902(A). See Lewis v. Industrial Commission, 93 Ariz. 324, 326, 380 P.2d 782, 783 (1963). A.R.S. § 23-902(A) ¹ reads as follows:

A. 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 any workmen or operatives regularly employed in the same business or establishment under contract of hire, except domestic servants. Exempted employers of domestic servants may come under the provisions of this chapter by complying with its provisions and the rules and regulations of the commission. For the purposes of this section "regularly employed" includes all employments whether continuous throughout the year, or for only a portion of the year, in the usual trade, business, profession or occupation of an employer. (Emphasis added).

Based on the requirements of this statute, the administrative law judge made two findings of fact. First, that Mrs. Rector was not engaged in any trade, business, profession or occupation. Second, that Mr. Griebel was a "domestic servant." The sufficiency of either finding precludes petitioner's recovery of a widow's benefit.

Petitioner takes exception to both of these findings. She contends that her husband was not a "domestic servant" such as a maid or housekeeper. Furthermore, she contends that Mrs. Rector and Mr. Dayton were in the "business" of holding properties for their appreciating values. Because we believe that these issues are intertwined both in fact and in law, we shall address them conjunctively.

Although a term of common usage, "domestic servant" has been subject to varying and inconsistent definitions. Some authorities have attempted to define it by virtue of the employee's residence; that is, whether the employee lives within or without the master's residence. See Toole Furniture Co. v. Ellis, 5 Ga.App. 271, 274, 63 S.E. 55, 57 (1908) (negligence action involving the master-servant relationship; citing Bouvier's Law Dictionary); Black's Law Dictionary (Rev. 4th ed. 1968). Of this concept, the Minnesota supreme court stated:

This distinction dates back to Blackstone and other ancient authorities on the common law of England. It was said that a domestic servant must live "intra moenia" or "within the walls." It had its origin in feudal conditions which no longer exist, and which never have existed in Minnesota.

Anderson v. Ueland, 197 Minn. 518, 520, 267 N.W. 517, 518 (1936). Certainly, the same thing can be said about Arizona. Cf. Johnson v. Industrial Commission, 5 Ariz.App. 185, 424 P.2d 833 (1967).

Similarly, contentions have been raised that "domestic servant" should be defined according to the nature of the work done. Such is the case of Barres v. Watterson Hotel Co., 196 Ky. 100, 244 S.W. 308 (1922), wherein a hotel maid filed a claim for workmen's compensation and the hotel defended on the grounds that a maid was a "domestic servant." The court stated:

She was, to be sure, engaged in an employment or occupation similar in many of its aspects to that generally pursued by domestics in the home. We apprehend, however, that the business of running a hotel is industrial in its nature and not domestic in the general meaning of that word.

Id. at 101-02, 244 S.W. at 309. See also, Fitzpatrick v. Crestfield Farm Inc., 582 S.W.2d 44 (Ky.App.1978).

These cases, we believe, show the fallacy of drawing distinctions based on antiquated definitions of domestic service. We agree that a "domestic servant" must be employed in or about the home or residence (although not necessarily within the walls), performing domestic tasks such as handymen, yardmen, gardeners, maids and so forth. See Torres v. Industrial Commission, 10 Ariz.App. 210, 457 P.2d 750 (1969); Johnson v. Industrial Commission, supra. For workmen's compensation purposes, however, we believe the most important inquiry is the use to which the master puts his servant's labor. As stated in Jack v. Belin's Estate, 149 Pa.Super. 531, 534, 27 A.2d 455, 457 (1942):

Agricultural workers are those who are engaged in an enterprise conducted by the employer for his profit. House servants merely contribute to the personal needs and comfort of the employer. Between the two groups are the outservants, who in strictness do not fall within either class. And yet there is much better reason for excluding gardeners, caretakers and the like, than agricultural workers, for they are not engaged in commercial enterprise and their services all relate to the home life. Our conclusion, in construing the act, is that the place where the services are performed does not determine the nature of the employment. Cooks and house maids are domestic servants, not because they work indoors, but because they serve the needs of the household. Similarly, one who drives an automobile in bringing supplies from market or in...