Industrial Commission v. Farm & Home Food Service, Inc.

• Decision Date: 25 April 1967
• Docket Number: CA-CIV,No. 1,1
• Parties: The INDUSTRIAL COMMISSION of Arizona, Appellant v. FARM AND HOME FOOD SERVICE, INC., Appellee. 334.
• Court: Arizona Court of Appeals

Page 808

426 P.2d 808

5 Ariz.App. 339

The INDUSTRIAL COMMISSION of Arizona, Appellant v. FARM AND HOME FOOD SERVICE, INC., Appellee.

No. 1 CA-CIV 334.

Court of Appeals of Arizona.

April 25, 1967.

Robert K. Park, by Dee-Dee Samet, Phoenix, for appellant. Richmond, Ajamie & Ray, by Amil J. Ajamie, Phoenix, for appellee.

DONIFRIO, Judge.

This is an appeal from a judgment in Superior Court of Maricopa County which reversed an order of the Industrial Commission of Arizona.

Appellee Farm and Home Food Service, Inc. sells home freezers and a frozen food product service which is furnished to customers obtained by salesmen who solicit contracts for the sale or service from individuals. In February 1964 the Industrial Commission ordered Farm and Home to pay premiums for workmen's compensation and occupational disease coverage on the salesmen who brought in these contracts for the sale of the freezers and food service. Farm and Home protested the order and requested a hearing alleging that the salesmen involved were independent contractors and not subject to workmen's compensation and occupational disease coverage. After hearing, the Industrial Commission issued an order finding that the salesmen were employees and that the premiums were due. Farm and Home, complying with A.R.S. § 23--946, filed in Superior Court a complaint which alleged that the Commission order was unreasonable and unlawful and asked that it be vacated. After trial the Court gave judgment in favor of Farm and Home, stating,

'IT IS ORDERED, ADJUDGED AND DECREED that the salesmen associated with Farm and Home Food Service, Inc., plaintiff, are not 'employees' within the definition of the Arizona Workmen's Compensation Act and Occupational Disease Act; * * *'.

The Industrial Commission has appealed this judgment.

The question presented is whether the salesmen of the merchandise of Farm and Home Food Service are employees or independent contractors within the meaning of Arizona's Workmen's Compensation Act and Occupational Disease Act. We are governed by the definition of the terms 'employee' and 'independent contractor' as set out in A.R.S. § 23--902:

'B. When an employer procures work to be done for him by a contractor over whose work he retains supervision or control, and such work is a part or process in the trade or business of the employer, then such contractors and the persons employed by him, and his subcontractor and persons employed by the sub-contractor, are, within the meaning of this section, employees of the original employer.

'C. A person engaged in work for another, and who while so engaged is independent of the employer in the execution of the work and not subject to the rule or control of the person for whom the work is done, but is engaged only in the performance of a definite job or piece of work, and is subordinate to the employer only in effecting a result in accordance with the employer's design, is an independent contractor, and an employer within the meaning of this section.'

As the concurring opinion of Justice Struckmeyer in Posey v. Industrial Commission, 87 Ariz. 245, 350 P.2d 659 (1960), said:

'* * * The test has been held to be whether the alleged employer retains control over the method of reaching the required result or whether his control is limited to the result reached, leaving the method to the other party. Barker v. General Petroleum Corp., 72 Ariz. 187, 232 P.2d 390, modified 72 Ariz. 238, 233 P.2d 449; Industrial Commission v. Navajo County, 64 Ariz. 172, 167 P.2d 113; Industrial Commission v. Byrne, 62 Ariz. 132, ...