Corral v. Ocean Accident and Guarantee Corporation, Ltd., Civil 3287

• Decision Date: 12 July 1933
• Docket Number: Civil 3287
• Parties: JOSEPHINE CORRAL, Administratrix of the Estate of TIBURCIO LOPEZ, Deceased, Appellant, v. OCEAN ACCIDENT AND GUARANTEE CORPORATION, LIMITED, a Corporation, Appellee
• Court: Arizona Supreme Court

23 P.2d 934

42 Ariz. 213

JOSEPHINE CORRAL, Administratrix of the Estate of TIBURCIO LOPEZ, Deceased, Appellant, v. OCEAN ACCIDENT AND GUARANTEE CORPORATION, LIMITED, a Corporation, Appellee

Civil No. 3287

Supreme Court of Arizona

July 12, 1933

APPEAL from a judgment of the Superior Court of the County of Yuma. Dave W. Ling, Judge. Judgment affirmed.

Mr. R N. Campbell, Mr. J. Fred Hoover and Mr. Peter T. Robinson for Appellant.

Mr. C H. Young and Mr. Paul J. Feehan, for Appellee.

OPINION

ROSS, C. J.

In the month of July or August, 1926, one Andrew Senum contracted with the Southern Pacific Hotel and Investment Company to construct a three-story concrete hotel at Yuma, Arizona. The nature and character of the work clearly subjected the employer and employees to the rules, regulations and requirements of the Workmen's Compensation Law but recently passed. Chapter 83, Laws of 1925, p. 345. One of such requirements was that the employer should, before engaging in any construction of the kind named, obtain workmen's compensation insurance. This Senum did with the Ocean Accident and Guarantee Corporation, Limited, to which we shall hereafter refer as the company. The material part of such contract of insurance reads as follows:

"Standard Workmen's Compensation and Employers' Liability Policy.

"The Ocean Accident and Guarantee Corporation, Limited (herein called the company) does hereby agree with this Employer, named and described as such in the Declarations forming a part hereof, as respects personal injuries sustained by employees, including death at any time resulting therefrom as follows:

"One (a) To pay promptly to any person entitled thereto, under the Workmen's Compensation Law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due.

"(1) To such person because of the obligation for compensation for any such injury imposed upon or accepted by this Employer under such of certain statutes, as may be applicable thereto, cited and described in an endorsement attached to this Policy, each of which statutes is herein referred to as the Workmen's Compensation Law, and

"(2) For the benefit of such person the proper cost of whatever medical, surgical, nurse or hospital service, medical, or surgical apparatus or appliances and medicines, or, in the event of fatal injury, whatever funeral expenses are required by the provisions of such Workmen's Compensation Law.

"It is agreed that all of the provisions of each Workmen's Compensation Law covered hereby shall be and remain a part of this contract as fully and completely as if written herein, so far as they apply to Compensation or other benefits for any personal injury or death covered by this Policy, while this Policy shall remain in force. Nothing herein contained shall operate to so extend this Policy as to include within its terms any Workmen's Compensation Law, scheme or plan not cited in an endorsement hereto attached.

"One (b) To indemnify this Employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada. In the event of the bankruptcy or insolvency of this Employer the Company shall not be relieved from the payment of such indemnity hereunder as would have been payable but for such bankruptcy or insolvency. If, because of such bankruptcy or insolvency, an execution against this Employer is returned unsatisfied in an action brought by the injured, or by another person claiming by, through or under the injured, then an action may be maintained by the injured, or by such other person claiming by, through or under the injured, against the Company under the terms of this Policy for the amount of the judgment in said action not exceeding the amount of this Policy."

The premium on such policy was figured upon the entire remuneration earned during the life of the policy by all of the employees engaged in the construction of said building.

One Tiburcio Lopez, an employee on the building, on or about September 7th, 1926, was accidentally electrocuted by coming in contact with a live wire. No claim for compensation by his widow or dependents was ever filed with the Industrial Commission, but instead his administratrix, Josephine Corral, as his personal representative, brought an action against Lopez' employer, Senum, for the benefit of his surviving widow and a posthumous child, under the employer's liability act, and recovered judgment therein in the sum of $12,500 and costs taxed at $145.55, which judgment was permitted to become final.

The present action was brought by the administratrix to recover from the company as insurance carrier the amount of said judgment. She contends that paragraph 1 (b) of the policy authorizes such a recovery. The court dismissed the action on the ground of lack of jurisdiction of the subject matter, and the administratrix has appealed.

From the foregoing statement it is seen that the questions to be decided are: (1) The right or power of the administratrix of Lopez' estate to avoid the compensation law by electing to sue for damages under the employers' liability act; and (2) her right to collect any judgment obtained against the employer from the insurance carrier.

The Workmen's Compensation Law, considerably condensed, consolidated and revised, is carried forward into the Revised Code of 1928 as article 5 of chapter 24 (section 1391 et seq.). But as the facts of this action arose prior to such revision our references shall be to the original act, chapter 83, supra.

The purpose of the compensation act, as has been repeatedly stated, is, as much as possible, to dispense with turmoil, contention, and litigation between employer and employee, and to place upon business the burden of caring for employees injured, or, when killed, their dependents. Our compensation law is replete with this thought. Its administration is confided to three men, appointed by the Governor, known as the Industrial Commission. There is created a state compensation fund for the purpose of insuring employers against liability for compensation and of assuring the employees their compensation.

Section 48 provides that all employers, except the state and its legal subdivisions, shall secure compensation to their...