Industrial Commission v. Byrne

This action is brought by the trustee of the Iron King Mining Company to recover from the Industrial Commission $376.94 premiums claimed by the latter body as earned by it. The material facts are as follows:

The Iron King Mining Company was engaged in the mining and milling of ores in Yavapai County, and was insured with the Industrial Commission, under the Workmen's Compensation Law. In 1941 it leased certain portions of its mines to Fred Jensen and Fred McCallum, a partnership, by the terms of which the lessees were given permission to enter upon and to mine and extract ores for a period of six months from certain blocks in the mines, and for such privilege to pay a royalty to the owner on all ores extracted. The lessees were to do the mining in a good workmanlike manner, and to return the property in good repair. In doing so, they were not under the supervision nor control of the lessor.

The lower court gave judgment to the plaintiff for the amount sued for, together with interest and costs. The Industrial Commission has appealed, claiming that the judgment is against the evidence and contrary to law.

The claim of the Industrial Commission to the said premium is based upon the contention that Jensen and McCallum were the employees of the mining company and under its supervision and control. This contention is made under the last sentence of Section 56-929, Arizona Code Annotated 1939, as amended, reading as follows:

"(b) Lessees of mining property and their employees and contractors, engaged in the performance of work which is a part of the business conducted by the lessor and over which the lessor retains supervision or control, are within the meaning of this section employees of the lessor, and deemed to be drawing such wages as are usually paid employees for similar work, and the lessor may deduct from the proceeds of ores mined by the lessees the premium required by this article to be paid for such employees."

[1] We have, in a number of cases, decided that the test to determine if one is an employer or an employee is whether the employer retains supervision or control of the work. Grabe v.Industrial Comm., 38 Ariz. 322, 299 P. 1031; Fox West CoastTheatres v. Industrial Comm., 39 Ariz. 442, 7 P.2d 582;United States Fidelity Guaranty Co. v. Industrial Comm.,42 Ariz. 422, 26 P.2d 1012.

[2] Under the terms of the above-quoted language the lessor is not the employer of the lessee of a mining claim unless he has supervision or control of the work, and unless Jensen and McCallum, in the extraction of the ore in the mining company's mine, were under the control and supervision of the mining company, the latter may not "deduct from the proceeds of ores mined by the lessees the premium required by this article to be paid for such employees." Section 56-929, supra. In other words, if Jensen and McCallum were independent contractors, which we certainly think they were under Section 56-928, Arizona Code Annotated 1939, there was no requirement that the mining company insure them and their employees.

The other contentions presented by the Industrial Commission we have carefully considered and are of the opinion there is no merit to them.

The judgment is affirmed.

STANFORD, J., concurs.