Lewis v. Industrial Commission

• Decision Date: 17 April 1963
• Docket Number: No. 7203,7203
• Citation: 93 Ariz. 324,380 P.2d 782
• Parties: Ethel M. LEWIS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and Max Placincio, Respondents.
• Court: Arizona Supreme Court

Page 782

380 P.2d 782

93 Ariz. 324

Ethel M. LEWIS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and Max Placincio, Respondents.

No. 7203.

Supreme Court of Arizona, In Banc.

April 17, 1963.

Leonard S. Sharman and John Campo, III, Phoenix, for petitioner.

Hunter, Bartlett & Penn, Phoenix, for respondent Placincio.

Donald J. Morgan, Phoenix, James D. Lester, Edward E. Davis, C. E. Singer, Jr., of counsel, Phoenix, for respondent Industrial Commission of Arizona.

JENNINGS, Justice.

This is a certiorari proceeding to review an award of the Industrial Commission granting recovery to the respondent Max Placincio against the petitioner Ethel M. Lewis.

Petitioner, a widow whose sole source of income is the proceeds from the sale of a farm which she and her deceased husband had owned, arranged with her neighbor Mr. Baugher to supervise the remodeling of her home. Mrs. Lewis requested, and Mr. Baugher consented, that he use Max Placincio the respondent and Robert Flores as laborers in the remodeling work. As work progressed other men were hired for specific tasks such as wiring, painting and floor sanding. The work extended over a period of about three months, during which time the respondent worked continuously.

Respondent was injured by a power saw and filed a cliam with the Industrial Commission. The Commission found that at the time of the accident the respondent was employed by petitioner who had in her employ three or more workmen subject to the provisions of the Arizona Workmen's Compensation Act, and that petitioner was not insured against liability for the payment of accident benefits.

Petitioner contends that the Commission erred in assuming jurisdiction in this cause because she, Mrs. Lewis, was not an 'employer' within the meaning of A.R.S. § 23-902 for the reason that she did not employ any workmen in the usual course of trade, business, profession, or occupation. ¹

The substance of respondent's argument is that he is a 'workman' or 'operative' within the meaning of A.R.S. § 23-901(4) (b), which includes every person in the service of any employer subject to the provisions of the Act except a person whose employment is casual and not in the usual course of trade, business or occupation of the employer. Respondent contends that his employment was not 'casual' and therefore it is immaterial whether his employment was in the usual course of petitioner's trade, business or occupation since a finding of either fact brings him within the Act. However true this contention may be it misses the point because satisfaction of A.R.S. § 23-901, defining employees covered by the Act, takes him only half way. Section 23-902, defining employers covered by the Act, must also be satisfied before the Commission can assume jurisdiction.

In order for an employer to come within the Act A.R.S. § 23-902 requires that his workmen or operatives be 'regularly employed.' And for the purposes of this section 'regularly employed', as defined, includes all employments 'in the usual trade, business, profession, or occupation of an employer.' This definition inferentially excludes employments which are not in the usual trade, business, profession, or occupation of an employer because of the rule of statutory construction expressio unius est exclusio alterius which applies in Arizona. O'Malley Lumber Co. v. Martin, 45 Ariz. 349, 43 P.2d 200 (1935). See Forsythe v. Paschal, 34 Ariz. 380, 271 P. 865 (1928).

The facts of this case show clearly that Mrs. Lewis was not engaged in the general business of constructing or remodeling houses and indeed that she had no trade or business whatsoever. Therefore, she was not an employer within the meaning of the Act.

The great majority of cases, regardless of their statutory background, do not apply Workmen's Compensation to construction or work done directly for a private householder. 1 Larson, Workmen's Compensation § 50.21 (1952). This view accords with our own theory of the purpose for Workmen's Compensation as expressed in numerous cases. We have stated repeatedly that its purpose is to place the burden of injury from industrial causes upon industry. Dunlap v. Industrial Comm., 90 Ariz. 3, 363 P.2d 600 (1961). We said in Goodyear Aircraft...