Hernández López v. Industrial Commission

Mr. Justice Rigau delivered the opinion of the Court. This is a petition for review brought in accordance with § 11 of the Workmen’s Accident Compensation Act, 11 L.P.R.A. § 12. We must review a Decision of the Industrial Commission by which petitioner was declared an uninsured employer. The following comes forth from the synthesis of the testimonies of the witnesses made by the Industrial Commission itself on its Decision of March 4, 1971. At the time of the events (1965) petitioner was 67 years old. By that time he had already retired from agriculture because by orders of the physician he could not engage in hard physical labor. For five [1000] years he had lived on Social Security. Before that he had four cuerdas of sugarcane, which he destroyed when he retired from agriculture as business. He remained with two cuerdas of coffee, fruit which he collected himself with the assistance of his family. At the time of the events he did not hire or engage workers or farmhands. Formerly, when he cultivated the four cuerdas of sugarcane as business, he had the policy of the State Insurance Fund. When he retired from agriculture and when he ceased employing workers he also ceased buying said policy. As to the specific facts of the case, it appears that the deceased, Evangelio Salgado, was petitioner’s neighbor and friend for about 15 years. Sometimes, when the avocado trees bore fruit, once a year, Evangelio collected avocados on petitioner’s property and both distributed them half and half. It was a family operation and not a commercial operation. If they had sold the avocados the year of the accident it is considered that each one would have received $3.00. Petitioner had given permission to Evangelio to that effect but the date of the events, a Sunday, he did not know that Evangelio was collecting avocados. That day Evangelio fell from a tree and died as a result of the bruises he received. Witness Pablo Alvarado Colón, petitioner’s witness, testified that Evangelio “used to drink beer.” The Institute of Forensic Medicine of the School of Medicine of the University of Puerto Rico established that when the deceased died, the level of alcohol in his blood must have been between 20 to 26 hundredths of one percent of alcohol by weight, which placed him “under the influence of intoxicating liquor.” It should be noticed that the Vehicle and Traffic Law provides that if in the blood of a person there is fifteen hundredths of one percent or more, by weight of alcohol, it shall be presumed that the person “was under the influence” of intoxicating liquor. 9 L.P.R.A. § 1041(b) (3). [1001] It is true that § 11 of the Workmen’s Accident Compensation Act, 11 L.P.R.A. § 12, provides that the review of the decisions of the Industrial Commission may be granted only on questions of law, or upon weighing of the evidence when such evidence is of an expert nature, but in the case under our consideration the controversy centers on whether or not petitioner is an uninsured employer and this is a determination of fact and of law, which is reviewable as a question of law. Gallart, Mgr. v. Industrial Commission, 89 P.R.R. 570, 577 (1963); Arraiza v. Industrial Commission, 85 P.R.R. 13 (1962) ; Romero v. Industrial Commission, 73 P.R.R. 750, 757 (1962). In this last case the Court concluded that even though the activity in question yielded some financial profit to petitioner, said activity was not habitual or regular but merely sporadical and it reversed the decision of the Industrial Commission by which it had been determined that petitioner was bound to be insured. In the instant case the facts reveal that the activity carried out by the deceased when the accident occurred was of an accidental or casual nature and it was not a part of any business of petitioner. An accident suffered by a person while performing work of an accidental or casual nature not included in the business, industry, profession, or occupation of the employer is not covered by the Workmen’s Accident Compensation Act. Section 2 of the aforesaid Act, 11 L.P.R.A. § 2; Arraiza v. Industrial Commission, supra. In view of the foregoing, the Decision appealed from and the previous order of the Manager of the State Insurance Fund of October 15, 1965, will be reversed and the petition brought in this case will be dismissed. Mr. Justice Ramírez Bages dissented in an opinion in which Mr. Acting Chief Justice Pérez Pimentel concurred. [1002] —O—