Climate Control, Inc. v. Hill, s. 6177

Citation349 P.2d 771,87 Ariz. 201
Decision Date02 March 1960
Docket Number6414,Nos. 6177,s. 6177
PartiesCLIMATE CONTROL, INC., a corporation, in the right and on behalf of The Industrial Commission of Arizona, and the policyholders of the said The Industrial Commission of Arizona, Appellant, v. B. F. HILL, F. A. Nathan and A. R. Kleindienst, individually and as Commissioners of said The Industrial Commission of Arizona; and The Industrial Commission of Arizona, and Phelps Dodge Corporation et al., Appellees.
CourtSupreme Court of Arizona

John E. Madden, Phoenix, McCarty, Chandler & Udall, Tucson, Favour & Quail, Prescott, for appellant.

Shimmel, Hill & Cavanagh, Phoenix, for appellees B. F. Hill and F. A. Nathan, individually and as commissioners of The Industrial Commission of Arizona, and for appellee Fisher Contracting Co.

Jennings, Strouss, Salmon & Trask, Phoenix, for appellee A. R. Kleindienst, individually and as a commissioner of The Industrial Commission of Arizona, and for appellee Salt River Valley Water Users' Ass'n.

John R. Franks, Phoenix, for appellee The Industrial Commission of Arizona.

Fennemore, Craig, Allen & McClennen, Phoenix, for appellees American Smelting and Refining Co., Kennecott Copper Corp., Mountain States Telephone and Telegraph Co., and The Pullman Co.

Edward W. Rice and G. H. Ladendorff, Globe, attorneys for appellees Inspiration Consolidated Copper Co., Magma Copper Co., and International Smelting and Refining Co.

Kramer, Roche & Perry, Phoenix, for appellees Garrett Corp., Palmer Mfg. Corp.

McQuatters & Stevenson, Flagstaff, for appellees, Southwest Lumber Mills Co., Saginaw & Manistee Lumber Co.

Evans, Kitchel & Jenckes, Phoenix, for appellees Apache Powder Co., Phelps Dodge Corp., Darr Aero Tech, Inc.; Phelps Dodge Mercantile Co., Verde Tunnel and Smelter Railroad Co., Upper Verde Public Utilities Co.

Morris & Malott, Globe, for appellees, Miami Copper Co., Castle Dome Copper Co., Inc., Copper Cities Mining Co.

Snell & Wilmer, Phoenix, for appellees Reynolds Metals Co., Allison Steel Mfg. Co., The Arizona Power Co.

Ryley, Carlock & Ralston, Phoenix, for appellee Standard Oil Co. of Cal.

Gust, Rosenfeld, Divelbess & Robinette, Phoenix, for appellee Western Union Telegraph Co.

Guynn, Twitty & Sievwright, Phoenix, for appellees, San Manuel Copper Corp., Shattuck Denn Mining Corp., The Stearns Roger Mfg. Co., Utah Construction Co., St. Anthony Mining & Development Co., Ltd., United States Smelting, Refining and Mining Co., The Eagle-Picher Co.

Cunningham, Carson & Messinger, Langmade & Sullivan, Flynn & Allen, Carl W. Divelbiss, Minne & Sorenson, Brice I. Bishop, Stahl, Murphy & Blakley, Phillips, Jones & Phillips, F. Britton Burns, Langerman & Begam, James E. Flynn, Rawlins, Davis, Ellis, Burrus & Kiewit, Phoenix, May, Lesher & Dees, Udall & Udall, Hall & Jones, Tucson, Mangum & Christensen, Flagstaff, amici curiae on motion for rehearing.

STRUCKMEYER, Chief Justice.

Appellant's motion for rehearing is granted to correct a possible erroneous impression left by a statement in this court's opinion issued July 15, 1959. Since we feel that it was necessary to grant a rehearing, we will also briefly discuss certain other aspects of appellant's motion.

We said in the statement of facts concerning the trial court's ruling in Cause No. 6414,

'As to the corporate defendants, three of appellant's claims were dismissed and a part of the fourth.'

This is incorrect. The corporate defendants were dismissed entirely from the fourth claim for relief.

In the light of A.R.S. § 23-946, that any person of interest dissatisfied with the order of the Commission may commence an action in the Superior Court against the Commission as defendant to set aside, vacate, or amend its order, the judgment dismissing the corporate defendants from the fourth claim for relief was proper. The statute limits the action to the Commission as defendant and it is appellant's exclusive remedy. However, other parties interested may properly intervene in the action if so desired.

Appellant urges that this court failed to theat its alternative to its basic costs claim predicated on the theory of restitution for unjust enrichment. Appellant, a corporation, brought this action in the right and on behalf of The Industrial Commission of Arizona, urging that it had the same primary right to bring the action which the Commission possessed. (We did not pass on the issue raised by the form of appellant's unique action, preferring that the matter be disposed of on the merits.) Therefore, once having determined that a premium for basic costs was included within the operation of the self-rating plan, and it being admitted that the premium was paid, it became apparent that no claim for relief in restitution existed. The contract between the Commission and the self-raters was performed in full. 5 Corbin on Contracts, § 1104, p. 462.

Appellant urges that the court's opinion in part was predicated on an erroneous assumption of fact. This, appellant says, is because the contract construed by the court is not the contract between the Commission and the self-raters. It may be stated that the contract construed by this court is the contract pleaded by appellant in the court below in both causes Nos. 6177 and 6414 as the contract between the Commission and the self-raters, and the same contract upon which the court below ruled in granting appellees' motion to dismiss. It is the same contract which was presented to this court on appeal as the contract between the Commission and the...

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12 cases
  • State ex rel. Nelson v. Jordan, 9480
    • United States
    • Arizona Supreme Court
    • February 6, 1969
    ...with the denial of the rehearing. This attitude towards rehearings is a 'long-established rule' of this Court. Climate Control, Inc. v. Hill, 87 Ariz. 201, 349 P.2d 771, app. dismissed 364 U.S. 409, 81 S.Ct. 180, 5 L.Ed.2d 185; Phelps Dodge Corp. v. Industrial Comm., 90 Ariz. 379, 368 P.2d ......
  • Newbery Corp. v. Fireman's Fund Ins. Co.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 11, 1996
    ...Climate Control, Inc. v. Hill, 86 Ariz. 180, 342 P.2d 854, 859 (1959) (emphasis added), modified on reh'g on other grounds, 87 Ariz. 201, 349 P.2d 771, appeal dismissed, 364 U.S. 409, 81 S.Ct. 180, 5 L.Ed.2d 185 (1960). Accordingly, under Arizona law the incorporation of the General Indemni......
  • Cutter Aviation, Inc. v. Arizona Dept. of Revenue
    • United States
    • Arizona Court of Appeals
    • May 22, 1997
    ...legislature requires be imposed. See Climate Control, Inc. v. Hill, 86 Ariz. 180, 191, 342 P.2d 854, 861 (1959), mod. on reh., 87 Ariz. 201, 349 P.2d 771 (1960); Switzer v. City of Phoenix, 86 Ariz. 121, 127, 341 P.2d 427, 431 (1959). We are aware of no authority for the proposition that th......
  • Phelps Dodge Corp., Morenci Branch v. Industrial Commission
    • United States
    • Arizona Supreme Court
    • January 31, 1962
    ...Comm., 367 P.2d 270 (Ariz.1961). A rehearing is not granted to reargue matters determined by the decision. Climate Control, Inc. v. Hill, 87 Ariz. 201, 349 P.2d 771. Petitioner, however, implies cavalier treatment stating that the Court disposed of the questions presented 'in a summary mann......
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