Doby v. Miami Trust Co., Civil 3095

Decision Date23 November 1931
Docket NumberCivil 3095
Citation5 P.2d 187,39 Ariz. 228
PartiesL. G. DOBY, Petitioner, v. MIAMI TRUST COMPANY, a Corporation, Defendant Employer, THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, and R. B. SIMS, WM. E. HUNTER and CHARLES HARTMAN, Members of the Industrial Commission of Arizona, Respondents
CourtArizona Supreme Court

APPEAL by Certiorari from award of Industrial Commission of Arizona. Award set aside.

Mr. H S. McCluskey, for Petitioner.

Mr Terrence A. Carson, for Respondents.



L. G. Doby, hereinafter called petitioner, in December, 1928, filed a claim before the Industrial Commission of Arizona, hereinafter called the commission, for compensation for injuries which he alleged had occurred to him arising out of and in the course of his employment by Miami Trust Company, a corporation, hereinafter called the employer. The commission made some kind of investigation regarding the matter, but held no formal hearing at which petitioner was present or evidence taken, and on January 29, 1929, entered an order to the effect that the evidence was insufficient to establish that the injury arose out of and in the course of petitioner's employment, and denying compensation.

On February 9th petitioner made application for a rehearing, which was duly granted. This hearing was held February 25th, before John J. Taheny as referee, petitioner being present in person and represented by his counsel, Hon. H. S. McCluskey. Thereafter, and on March 27th, a further hearing in the same manner was held, petitioner being present in person and by counsel as before, and the employer being represented by its general manager, L. D. Van Dyke. The evidence at both hearings was taken verbatim by a reporter. Thereafter petitioner requested certain findings of fact, and also that the reporter's transcript be corrected to show certain matters which he claimed had been omitted therefrom.

No action was taken on this request, and no formal findings of fact or award was ever made by the commission after these hearings, but on May 27, 1929, the following document was executed:

"Settlement Agreement and Release.

"Know All Men by These Presents, That the undersigned claimant, for and in consideration of the sum of sixteen hundred sixty-eight ($1668.00) Dollars, to be paid to the undersigned claimant by the Industrial Commission of Arizona hereby releases and forever discharges Miami Trust Company and The Industrial Commission of Arizona, of and from any and all manner of actions and causes of action, suits, debts, dues, sums of money, accounts, controversies, agreements, promises, damages, judgments, executions, claims, and demands whatsoever, in law or in equity, and particularly from all claims and demands whatsoever, arising in or out of, or in connection with, an injury or injuries, including all the consequences thereof, suffered or claimed to have been suffered by L. G. Doby on or about the 4th day of December, 1928, in the State of Arizona, while in the employ of Miami Trust Company, which the undersigned claimant ever had, or now possesses, or which the undersigned claimant, or the heirs, executors, administrators, or assigns of the undersigned claimant, hereafter can, shall, or may have against either the Miami Trust Company and/or The Industrial Commission of Arizona, for, upon, or by reason of any matter, cause or thing whatever.

"And in consideration of the foregoing release the Industrial Commission of Arizona does hereby agree to forthwith pay said sum to said claimant.

"[Signed] H. S. McCLUSKEY,

"Attorney for Claimant.

"[Signed] L. G. DOBY,



"[Signed] By R. B. SIMS

"[Signed] BURT H. CLINGAN,


"Dated at Phoenix, Ariz., this 27th day of May, 1929


"[Signed] R. RAND

"[Signed] ADRIA R. TURNER."

The money consideration set forth in said agreement was duly paid to petitioner. His attorney at the time protested in writing that he thought the amount of settlement unjust, and had so advised his client, but that, owing to the immediate need of the latter, he had decided to accept the offered settlement. No appeal to this or any court was ever taken from any of the foregoing proceedings, unless this proceeding be considered as such.

Thereafter, and on March 30, 1931, petitioner filed an application for a rehearing in the matter, setting forth the original award denying compensation, the two hearings before the referee, the failure of the commission to take further formal action after those hearings, the agreement of settlement as aforesaid, together with various reasons which petitioner alleged induced him to enter into such agreement, and that after such agreement his condition had grown progressively worse as a result of the injuries received in the original accident for which compensation was sought; that the commission had him re-examined and operated upon, paying the costs thereof, and that he was at the time of his petition suffering from temporary total and permanent partial disability. On March 31st the commission sent the following letter to petitioner:

"We are in receipt of application for rehearing in your case.

"Review of the file indicates that said case has been definitely and finally closed and that it no longer is within the province of this Commission to reopen same.

"We regret that such are the facts."

Thereafter and within thirty days this appeal was initiated.

The contention of petitioner may be summed up as follows: (1) The commission, under the Constitution and laws of Arizona, is without jurisdiction to compromise a claim formally made before it for the adjudication of compensation. Its authority is limited to (a) approving or rejecting the claim as compensable under the statute, and (b) if and as it is found to be compensable, awarding compensation only on the basis set forth in the statute. (2) The so-called settlement agreement, if it be considered as a compromise, is void as beyond the jurisdiction of the commission, and petitioner's rights are in no way affected thereby. (3) If it be considered, on the other hand, as in effect, though not in form, an award, it is an adjudication that the accident from which petitioner suffered was compensable, and petitioner is then entitled to have the case reopened for the purpose of showing the true amount of compensation due him, both under the original award and as a result of further development of the injuries previously suffered by him.

The commission's attitude, on the other hand, is that it has jurisdiction under the statute, to compromise doubtful claims, and that petitioner, with full knowledge of his rights, and under advice of counsel, did compromise his claim for compensation, and accepted settlement thereof, and that, such being the case, he is without standing in this court. The questions raised are of considerable importance to the proper administration of the Workmen's Compensation Act, and we therefore review the law somewhat at length.

The act is set forth in article 5, chapter 24, Revised Code of 1928, and we quote the particular sections or portions thereof necessary for the determination of the issues raised in this case as follows:

"1397. The commission shall have full power, jurisdiction and authority to administer and enforce all laws for the protection of life, health, safety and welfare of employees in every case and under every law, where such duty is not now specifically delegated to any other board or officer, and in such latter cases; to counsel and advise and assist in the administration and enforcement of such laws; to investigate ascertain and determine such reasonable classification of persons, employments and place of employment necessary to carry out the purposes of this article; to promote the voluntary arbitration, mediation and conciliation of disputes between employers and employees. . . ."

"1398. Any employer or other person interested in, or affected by, an order of the commission, may petition for a hearing on the reasonableness and lawfulness of such order by a verified petition filed with the commission, setting out specifically and in detail the order upon which a hearing is desired, and the reasons why such order is unreasonable or unlawful, and the issue to be considered by the commission on the hearing. Objections other than those set forth in the petition are deemed finally waived.

"Upon receipt of such petition, if the issue raised in such petition has theretofore been adequately considered, the commission shall confirm, without hearing, its previous determination; if such hearing is necessary to determine the issue raised, the commission shall order a hearing thereon at such time as it shall prescribe. Notice of the time and place of such hearing shall be given to the petitioner and to such other persons as the commission may find directly interested in such decision. Upon the hearing if it be found that the order complained of is unlawful or unreasonable, the commission shall substitute therefor such order as may be lawful and reasonable, and may grant further time, reasonably necessary, for compliance with its order."

"1421. Every employee, hereinbefore designated, who is injured, and the dependents of every such employee who is killed, by accident arising out of and in the course of his employment, wheresoever such injury has occurred, unless purposely self-inflicted, shall be entitled to receive, and shall be paid such compensation for loss sustained on account of such injury or death, and such medical, nurse and hospital services and medicines, and such amount of funeral expenses, in case of death, as are herein provided."

"1436. Every employee, or his legal...

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    ... ... the opinion of this court in Doby v. Miami Trust ... Company et al., 39 Ariz. 228, 5 P.2d ... Maryland ... Casualty Co. v. Industrial Commission, 33 Ariz ... 490, 266 P. 11; ... ...
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