King v. Alabam's Freight Company, Civil 3184

Decision Date13 June 1932
Docket NumberCivil 3184
Citation40 Ariz. 363,12 P.2d 294
PartiesHELEN KING, JACK EDWARD KING, VINCENT V. KING, FRANK E. KING, MYRTLE KING and MARGARET KING, Petitioners, v. ALABAM'S FREIGHT COMPANY, a Corporation, Defendant Employer, THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, and R. B. SIMS, BURT H. CLINGAN and WM. H. HUNTER, Members of the Industrial Commission of Arizona, Respondents
CourtArizona Supreme Court

PETITION for Writ of Certiorari to set aside an award of the Industrial Commission. Award affirmed.

Mr. H S. McCluskey, for Petitioners.

Mr Burt H. Clingan and Mr. Albert Mackenzie, for Respondent Industrial Commission of Arizona.

OPINION

LOCKWOOD, J.

Helen King, Jack Edward King, Vincent V. King, Frank E. King Myrtle King and Margaret King, hereinafter called petitioners, in the early part of 1930 filed an application before the Industrial Commission of Arizona, hereinafter called the commission, asking compensation for the death of John David King, the husband of the first petitioner and the father of the others, which death it was alleged was caused on January 11th, 1930, by an accident arising out of and in the course of his employment by the Alabam's Freight Company, a corporation, hereinafter called the respondent, while he was endeavoring to care for certain employees and property of respondent he had reason to believe were exposed in a severe snowstorm on the road between Prescott and Jerome.

An award was made on July 3rd, 1930, denying compensation on two grounds: First, that deceased was not at the time of his death in the service of respondent; and, second, that if he was, his death did not arise out of his employment.

The matter was brought before us in the usual manner on certiorari, and we held that the evidence as it then stood did not support either the finding of the commission that deceased was not employed by respondent or the one that his death did not arise out of and in the due course of such employment, and set the award aside. The evidence as shown by the record then before us is set forth quite fully in our opinion. King v. Alabam's Freight Co., 38 Ariz. 205, 298 P. 634.

Subsequent to the receipt of the opinion and mandate of this court, the commission on the twenty-ninth day of May, 1931, served notice on petitioner Helen King, her attorney, H. S. McCluskey, and respondent that on June 26th, at 10 A.M., the commission would proceed to hear and dispose of the application for compensation. On that date and on several occasions thereafter the commission proceeded to take evidence, both old and new, covering all of the material issues upon which it was necessary that findings be made to determine the question as to whether petitioners were entitled to compensation, treating the proceedings as in effect a hearing de novo upon the original application for compensation.

On December 17th an award was made which contained some twenty-nine findings of fact and denied any compensation to petitioner. These findings of fact are full and complete, but it is not necessary that we set them all forth in full in this record. Those material to the determination of the case on certiorari are the following:

"5. That the death of said John David King did not arise out of or occur in the course of his employment by said Black Canyon Stage Company."

"11. That said Alabam's Freight Company sent two trucks out from Phoenix to Prescott and Jerome on Friday, January 10th, 1930. That said trucks were stalled by the storm at Congress Junction approximately forty miles south of Prescott and that the Prescott office was notified of the disposition of these trucks and contents.

"12. That the Prescott agent for Alabam's Freight Company, J. L. Freeman, had charge of the northern Arizona district of said company and notified the Jerome agent, Timothy Kirkpatrick, Saturday morning, January 11th, 1930, that all traffic around Prescott was tied up by the storm and that no trucks would attempt to reach Jerome that day."

"14. That before leaving his house that morning said Freeman told his wife, Violet Freeman, of the conversation with Kirkpatrick. That the fact that no trucks of the defendant employer were on said Prescott-Jerome road and that no trucks would attempt to reach Jerome that day was again made clear to said Timothy Kirkpatrick by Mrs. Violet Freeman, wife of J. L. Freeman, about noon on said January 11th, 1930."

"25. That no trucks either of the Alabam's Freight Company or the Black Canyon Stage Company were on the Prescott-Jerome road on that date, which facts were known to said Kirkpatrick and King."

"27. That in making such trip (the one on which they died) said Kirkpatrick and King were not in the performance of any duty to, or within the scope of employment of defendant employer."

Petitioners have again brought the award denying compensation before us for review. They make some seven assignments of error, but these present in substance but three questions of law for our determination, and we shall consider the case upon these three questions.

It is the contention of petitioners, in substance, that when this court rendered its previous decision setting aside the award denying compensation originally made by the commission, the latter had no jurisdiction to reopen the case for the taking of any evidence upon any issue except perhaps as to the amount of compensation to be paid the petitioners, for the reason that our decision was res adjudicata as to all the matters embraced therein and was binding upon the commission. It is the position of the commission, on the other hand, that the effect of setting aside an award is similar to the remanding of a case to the superior court for a new trial, and that the commission after such a remand tries the case de novo, and is not precluded from taking new evidence bearing on the issues of the case.

We have assumed the position of the commission to be correct in Ocean Accident & Guarantee Corp. v. Industrial Com., 32 Ariz. 54, 255 P. 598, and Id., 34 Ariz. 175, 269 P. 77; but since the question was not expressly argued or decided therein, we consider it as a matter of first impression.

We have held repeatedly and consistently that while the commission is not strictly speaking a court, it is nevertheless a tribunal established by the legislature and having bestowed upon it the right to determine questions of fact and to apply the existing law thereto in matters within the jurisdiction conferred upon it by the Compensation Act (Rev. Code 1928, §§ 1391-1457); Federal Mutual Liability Ins. Co. v. Industrial Com., 31 Ariz. 224, 252 P. 512, and except as the Compensation Act expressly provides otherwise, we have treated hearings before the commission, generally speaking, as though they were trials in the superior court, and have applied to such hearings the fundamental rules governing proceedings in such courts (Federal Mutual Liability Ins. Co. v. Industrial Com., supra; Maryland Cas. Co. v. Industrial Com., 33 Ariz. 490, 266 P. 11; Holloway v. Industrial Com., 34 Ariz. 387, 271 P. 713; Blankenship v. Industrial Com., 34 Ariz. 2, 267 P. 203).

In the very recent case of Doby v. Miami Trust Co., 39 Ariz. 228, 5 P.2d 187, we say, referring to the duties and powers of the commission in making awards:

"The commission in making those awards is bound by the same fundamental principles of law and justice as are the courts, and the first principle applicable is that in considering an application for compensation it must act judicially, and in no sense as a partisan.

"When the applicant presents his petition for an award of compensation for an injury, he is in the same position as the plaintiff who applies to a court of law for a judgment against some defendant. . . . All it [the commission] can do is consider the evidence and determine whether as a matter of law and fact the claim is well-founded. As such we conceive is the jurisdiction of the commission when it is asked to make an award. . . . If the evidence is not sufficient as a matter of law to sustain a judgment in favor of plaintiff, a court has no option but to render judgment for the defendant. If, on the other hand, the evidence in its opinion does sustain the judgment, it has no option but to render judgment in favor of the plaintiff. And so with the commission; no matter how doubtful the evidence or how difficult the conclusion is, the issue must be met and the decision made. . . .

"It is the duty of the commission, whenever a claim for compensation is presented to it, to search calmly, impartially, and judicially through all the sources available to it, either through presentation by others or by its own investigation, for the truth, uninfluenced by any consideration but the law and the facts, and then to make such award as in its opinion that law and those facts justify. . . ."

We think our previous decisions show clearly and emphatically that not only are the general principles governing superior courts applicable to the commission in its determining the facts and applying the law in making its awards, but in addition the commission not merely must take such evidence as may be presented to it by others, but it should make an independent search through its own investigators for such evidence as may establish the true facts in any given case. We think that none can question this to be the power and duty of the commission on an original hearing of an application for compensation.

Is the situation changed, however, when its original award has been set aside by this court? The powers of the Supreme Court in ordinary cases are very broad. Under the Code, when an appeal comes before us from the superior court, we may either affirm, reverse or modify the judgment appealed...

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