Melendez v. Johns

• Decision Date: 07 March 1938
• Docket Number: Civil 3919
• Citation: 76 P.2d 1163,51 Ariz. 331
• Parties: ANTONIO MELENDEZ, Petitioner, v. GARWOOD JOHNS and WAYNE BRAND, Defendant Employers, and THE INDUSTRIAL COMMISSION OF ARIZONA, Respondents
• Court: Arizona Supreme Court

76 P.2d 1163

51 Ariz. 331

ANTONIO MELENDEZ, Petitioner, v. GARWOOD JOHNS and WAYNE BRAND, Defendant Employers, and THE INDUSTRIAL COMMISSION OF ARIZONA, Respondents

Civil No. 3919

Supreme Court of Arizona

March 7, 1938

APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Proceeding dismissed.

Miss S V. Ross, for Petitioner.

Mr Herman Lewkowitz and Mr. Raymond R. Wein, for Respondents Garwood Johns and Wayne Brand.

OPINION

ROSS, J.

This proceeding is one under the Workmen's Compensation Law. Rev. Code 1928, sec. 1391 et seq., as amended. The Industrial Commission denied Melendez compensation and dismissed his application therefor on the ground that the work he was doing when injured was not covered by the Compensation Law. The employers were Garwood Johns and Wayne Brand, according to the commission's findings. The commission is made a party as the representative of the State Compensation Fund.

On or about May 1, 1936, and after the spring lettuce season in the Salt River Valley was practically over, the employers, Johns and Brand, agreed to and did buy a lettuce field located a short distance south of Glendale for the purpose of harvesting and shipping it to the markets. This was the only transaction of the kind in which Johns and Brand had ever engaged together. Johns' business, according to his testimony, was the buying, shipping, and growing of lettuce. Brand's business was the buying in the field, harvesting and shipping of produce, including lettuce. Whether he was a grower does not appear.

Johns and Brand employed L. F. McKillip to harvest this field of lettuce for the stipulated price of 16 cents a packed out crate at the packing sheds. McKillip employed Melendez to assist in harvesting, and said he was to do anything he told him to do. There was considerable discussion at the hearing as to just what his duties were, and it was stipulated by counsel that his job was "picking lettuce." It was the duty of the pickers to follow the cutters and pick up from the ground the lettuce and put it into field crates. The work of the cutter was to cut the lettuce with a lettuce knife, and then there were the packers who packed the lettuce into the crates at the shed. While riding on a truck on the 2d of May from the field to Phoenix, Melendez suffered an injury to his hand in a collision with another automobile. At the time he was on his way to the packing shed to be paid for his day's work. The truck in which he was riding was under the control of McKillip.

There were about twenty cutters, pickers, and packers engaged in harvesting this field of lettuce.

The Industrial Commission under these facts found that Melendez was an agricultural worker not employed in the use of machinery, and denied his application for compensation, the employers not having elected to bring agricultural workers not engaged in the use of machinery under the Workmen's Compensation Law, and "ordered that said proceedings be dismissed by reason of lack of jurisdiction." A motion for a rehearing was made in due course and denied, and we are asked to review the proceeding.

The petitioner's claims, we think, may be stated to be (1) that Melendez and his coworkers were not agricultural workers. His counsel in her brief says:

"Certainly no one after reading all the evidence in this case could question that Johns and Brand had in service three or more workmen or operatives regularly employed in the same business, except agricultural workers."

(2) That the Workmen's Compensation Law as revised in the Code of 1928, sections 1418 and 1419, makes employers of agricultural workers subject to the Compensation Law, even though "not employed in the use of machinery." We will consider these points in the reverse order.

The Workmen's Compensation Law was passed in 1925, chapter 83. The relevant portions of the sections involved, and as originally passed, read as follows:

"Section 44. Employers Subject to This Act. -- The following shall constitute employers subject to the provisions of this act:

"(1) The state, and each county, city, town, municipal corporation, and school district therein.

"(2) Every person, firm and private corporation, including every public utility, that has in service three or more workmen or operatives regularly employed in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written, except argicultural workers not employed in the use of machinery, and domestic servants; provided, that employers who have in service agricultural workers as designated and domestic servants shall have the right to come under the terms of this act by complying with the provisions thereof and all rules and regulations of the commission.

"The term 'regularly' as herein used, shall include all employments, whether continuous throughout the year or for only a portion of the year. It means all employments in the usual course of the trade, business, profession or occupation of an employer....

"Section 45. Employee, Workman, and Operative. The terms 'employee,' 'workman,' and 'operative,' as used in this act, shall be construed to mean:

"(1) Every person in the service of the state, and of every county, city, town, municipal corporation, or school district, including regular members of lawfully constituted police and fire departments of cities and towns, under any appointment or contract of hire, express or implied, oral or written, except any elective official of the state, or of any county, city, town, municipal corporation, or school district therein, or other official receiving more than $2,400.00 per year salary.

"(2) Every person, except agricultural laborers as designated and domestic servants in the service of any employer, as defined in subdivision 2 of Section 44, who employs three or more workmen or operatives regularly in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally or illegally permitted to work for hire under the laws of the state, but not including any person whose employment is but casual and is not in the usual course of trade, business or occupation of his employer."

These two sections of the act of 1925 in the 1928 revision were changed to read as follows:

"§ 1418. Employers included; independent contractor. The following employers shall be subject to the provisions of this article: The state, and each county, city, town, municipal corporation and school district therein; and every person who has in his service three or more workmen or operatives regularly employed in the same business, or establishment, under a contract of hire, except agricultural workers not employed in the use of machinery, and domestic servants; employers of such agricultural workers and domestic servants may, however, at their election come under the terms hereof by complying with its provisions and the rules and regulations of the commission.

"The term 'regularly employed,' as herein used, 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....

"§ 1419. Employee, workman and operative. The terms 'employee,' 'workman,' and 'operative,' as used herein, mean: Every person in the service of the state, and of a county, city, town, municipal corporation, or school district, including the regular members of lawfully constituted police and fire departments of cities and towns, under appointment or contract of hire, except the elective officials and except officials receiving more than twenty-four hundred dollars per year salary; every person in the service of any employer subject to this article as defined in the preceding section including aliens and minors legally or illegally permitted to work for hire, but not including a person whose employment is casual and is not in the usual course of trade, business or occupation of the employer."

It will be readily conceded that the correct interpretation of the original section 44 excludes from the act employers of agricultural workers not using machinery and domestic servants, unless such employers elect to come under the law. It is equally certain that the same meaning is carried forward in the revision of that section as found in section 1418, supra. A comparison of the two sections shows some verbal changes were made, but no change in meaning. In the revision, employers of agricultural workers as designated and domestic servants are not subject to the act. Whatever may be said of changes in other sections, section 44, as revised, excludes from the act employees not working with machinery.

The next section (45) of the original act is complementary to section 44. The two sections fit into each other. The first names the employers subject to the act and the other the employees. The first excludes employers of agricultural workers not using machinery and domestic servants, and the latter likewise excludes them from the benefits of the act. The revision of section 45 into section 1419, although changing the verbiage, does not change the meaning, but in the respects now questioned takes particular pains to preserve the meaning of section 45 as originally passed. It is true, in naming who is an "employee," "workman," or "operative," the revision substitutes forthe phrase, "Every person, except agricultural laborers as designated and domestic servants in the service of any employer, as defined in subdivision 2 of Section 44," the phrase, "every person in the service of any employer subject to this article as defined in the preceding section." Sec. 1419.

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