Killebrew v. Industrial Commission

• Decision Date: 03 February 1947
• Docket Number: 4898
• Citation: Killebrew v. Industrial Commission, 65 Ariz. 163, 176 P.2d 925 (Ariz. 1947)
• Parties: KILLEBREW v. INDUSTRIAL COMMISSION et al
• Court: Arizona Supreme Court

176 P.2d 925

65 Ariz. 163

KILLEBREW v. INDUSTRIAL COMMISSION et al

No. 4898

Supreme Court of Arizona

February 3, 1947

Appeal from Industrial Commission.

Proceeding under the Workmen's Compensation Act by Tobert W Killebrew, claimant, opposed by O. R. Verretto and another doing business as Riverside Ranch. To review an award of the Industrial Commission denying compensation, the claimant appeals by certiorari.

Award set aside.

E. C Locklear and Donald J. Morgan, both of Prescott, for petitioner.

John R Franks, of Phoenix, for respondent Commission.

Byrne & McDaniel, of Prescott, for respondent Employer.

Croaff, Superior Judge. Stanford, C. J., and LaPrade, J., concurring.

Note: MORGAN, J., having disqualified himself, the remaining judges, under section 3 of article 6 of the Constitution, called in Honorable Thomas J. CROAFF, Judge of Superior Court of Maricopa County, to sit with them in the hearing of this case.

OPINION

Croaff, Superior Judge.

This is an appeal by certiorari from an award of the Industrial Commission.

Petitioner Tolbert W. Killebrew filed a claim before the Industrial Commission alleging that on July 1, 1945, he sustained an injury to his eye while employed in work in connection with a hay baling machine owned and operated by his employers, O. R. Verretto and J. J. Sullivan, Jr., and at the time alleged, was engaged in contract hay baling for one Walter A. Duncan, near Clemenceau, Arizona.

The hay baling machinery was purchased by Verretto and Sullivan and used by them in the operation of their own ranch, known as Riverside Ranch. When not so engaged, Verretto and Sullivan contracted hay baling on neighboring ranches and used the hay baling machinery in such contract work.

After the petitioner filed his claim for compensation, the Industrial Commission, upon investigation and the taking of evidence, made its Findings and Award.

"Findings

"1. That the above-named applicant, while employed in the State of Arizona, by the above-named defendant employer, sustained an injury by accident arising out of and in the course of his employment on or about July 1, 1945.

"2. That at said time said applicant and said employer were not subject to the terms of the Workmen's Compensation Law or to the jurisdiction of this Commission by reason of the fact that at said time said employer did not have three or more employees regularly employed.

"Award

"Now, therefore, it is ordered that said proceedings be dismissed by reason of lack of jurisdiction.

"It is further ordered that any party aggrieved by this award may apply for rehearing of the same, by filing application therefor at the office of this Commission within ten days after the service of this award, as provided by the rules and regulations of this Commission."

In due time petitioner made application for rehearing and the Industrial Commission, upon granting the rehearing, specified: "The purpose of this hearing is to establish whether employer had three or more employees at the time of the alleged accident. It will be necessary for the claimant to produce witnesses proving that this was the case."

Apparently the Commission was satisfied that its findings first made that claimant Killebrew "sustained an injury by accident arising out of and in the course of his employment on or about July 1, 1945," was amply supported and sustained by the evidence.

After taking of further testimony the Commission on March 5, 1946, in "Record of Commission's Action" ordered "* * * enter Amended Findings and Award, and award to be the same as that of previous findings and award." However, unexplained by the record, the Commission, on March 6, 1946, made its Findings and Award, as follows:

"Decision Upon Rehearing and Amended Findings and Award

"Heretofore on the 20th day of December, 1945, this Commission entered herein its Findings and Award, finding in effect that the Commission lacked jurisdiction in the premises and ordering that the Commission lacked jurisdiction in the premises and ordering that the proceedings be dismissed by reason thereof.

"Thereafter applicant duly filed his Petition and Application for Rehearing; the same being granted, rehearing was held before the Commission at Prescott, Arizona, on February 5, 1946, at which hearing testimony and evidence was taken, and at the conclusion of which the matter was submitted to the Commission for decision in the premises.

"The Industrial Commission of Arizona, after having fully considered the file, records, testimony and evidence herein, and hereunto appertaining, now enters its Decision Upon Rehearing and Amended Findings and Award as follows:

"Findings

"1. That the above-named applicant claims to have sustained an injury by accident arising out of and in the course of his employment on or about the 1st day of July, 1945, while employed in the State of Arizona by the above-named defendant employer.

"2. That at said time the said defendant employer did not have in its service three or more workmen, regularly employed within the meaning of Section 56-928, Arizona Code Annotated, 1939.

"3. That the type of work in which said employer was engaged at said time, was agricultural in nature, and such employees as he did have were engaged in the use of machinery, but that said employer had not elected to come under the terms and provisions of the Arizona Workmen's Compensation Law by complying with its provisions and the rules and regulations of the Commission.

"4. That at said time said applicant and said employer were not subject to the terms of the Arizona Workmen's Compensation Law, nor to the jurisdiction of this Commission by reason of the fact that at said time, said employer did not have three or more employees regularly employed within the meaning of Section 56-928, Arizona Code Annotated, 1939.

"5. That the Commission lacks jurisdiction in the premises.

"Award

"Now, therefore, it is ordered that said proceedings be dismissed by reason of lack of jurisdiction, and that applicant take nothing against defendant by reason of his claim, his petition for rehearing or by reason of rehearing held.

"It is further ordered that any party aggrieved by this Decision upon Rehearing and Amended Findings and Award may, within thirty days after the rendition of the same, apply to the Supreme Court of Arizona for a writ of certiorari to review the lawfulness of said Decision Upon Rehearing and Amended Findings and Award, pursuant to the provisions of Section 56-972, Arizona Code Annotated, 1939."

During the taking of the testimony on rehearing the employers Veretto and Sullivan made the following admission: "* * * we admit that the baler and tractor require four men for its regular and ordinary operation."

In the respondent-employer's brief, it is stated:

"The persons involved when the baler was in regular and normal operation were:

"1. The tractor driver.

"2. The feeder of hay for compression in the hay baling machine.

"3. The tier of wires on the bales of hay after compression; and

"4. The so-called punch-back, who threaded the wires through the block in the hay baling form."

The respondent-employer contends that on the Walter Duncan job (during which employment petitioner claims he was injured) Veretto drove the tractor, petitioner Killebrew fed the hay, Carl Goddard tied wires, and Jimmy Duncan acted as punch-back; that neither Verretto nor his partner Sullivan contacted Jimmy Duncan to work as punch-back -- his father, Walter Duncan, agreeing to furnish either himself or his boy for such work in the hay baling on the Duncan Ranch. While Jimmy Duncan deemed himself indebted to Verretto for favors in machinery lent to him in the past, he neither asked for nor received any compensation from Verretto or the partnership for his work as punch-back on the Walter Duncan job of July 1, 1945. It appears from the testimony of Jimmy Duncan that he had worked for Verretto and Sullivan prior to said July 1, 1945, and had been paid 50...