Means v. Industrial Commission, 1

• Decision Date: 10 April 1973
• Docket Number: No. 1,CA-IC,1
• Citation: 19 Ariz.App. 484,508 P.2d 371
• Parties: Ruth MEANS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Phelps Dodge Corporation, Respondent Employer, State Compensation Fund, Respondent Carrier. 781.
• Court: Arizona Court of Appeals

Page 371

508 P.2d 371

19 Ariz.App. 484

Ruth MEANS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Phelps Dodge Corporation, Respondent Employer State Compensation Fund, Respondent Carrier.

No. 1 CA-IC 781.

Court of Appeals of Arizona, Division 1, Department A.

April 10, 1973.

Rehearing Denied May 16, 1973.

Whitehill, Berger & Karp, P.C., by David D. West, Tucson, for petitioner.

William C. Wahl, Jr., Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Evans, Kitchel & Jenckes, P.C., by Setphen W. Pogson and Richard L. Levin, Phoenix, for respondent employer.

Robert K. Park, Chief Counsel State Compensation Fund, phoenix, for respondent carrier.

STEVENS, Judge.

The petitioner, Ruth Means, requests that this Court set aside an award of The Industrial Commission of Arizona, which award denied the reinstatement of her widow's compensation after her second marriage had been annulled by a decree of the Superior Court.

Prior to and during the month of April 1965 the petitioner and Lyle Lloyd Means were husband and wife. During the existence of the marital relationship, Mr Means died as the result of an industrial accident. Under Claim No. TC--271 the petitioner received and Industrial Commission award of a monthly allowance pursuant to A.R.S. § 23--1046, subsec. A, par. 2 which then, and now, reads as follows:

'2. To the widow, if there is no child, rhirty-five per cent of the average wage of the deceased, to be paid until her death or remarriage, with two years compensation in one sum upon remarriage.'

On 26 December 1969 the petitioner participated in a marriage ceremony and she was thereafter awarded two years compensation in one sum pursuant to the above quoted A.R.S. section.

The petitioner thereafter secured an annulment, tendered repayment of the lump sum two-year award and sought the reinstatement of the monthly award of widow's compensation. The petition was based upon a stipulation of facts supported by a letter from her second 'husband' together with her own affidavit. The employer supplied copies of the complaint, the amended complaint and the decree of annulment.

We quote a portion of the hearing officer's findings and sward which are supported by the evidence and which were approved by The Industrial Commission on review.

'6. That prior to the marriage, (name omitted) fraudulently misrepresented to applicant that he was fifty-five years of age, that he was capable of and would, in fact, consummate their marriage and perform sexual intercourse with her.

'7. At the time of the marriage, (name omitted) knew that he had no intention of, nor could, perform the sex act with the applicant, of which he did not inform the applicant.

'8. That (name omitted) knew that the applicant would not marry him if she was aware of his true age and fact that he would not consummate the marriage.

'9. That relying on these fraudulent representations, applicant agreed to and did enter into the marital contract with (name omitted).

'10. As soon as applicant discovered (name omitted) true intentions and capabilities, they no longer cohabited with one another.'

Even though the hearing officer found facts favorable to the petitioner, he concluded that the Arizona case law required a denial of her request for a reinstatement of her monthly award and The Industrial Commission agreed.

There ars four Arizona cases which relate to this problem. They are: Southern Pacific Company v. Industrial Commission of Arizona (herein referred to as Southern Pacific) 54 Ariz. 1, 91 P.2d 700 (1939); Hallford v. Industrial Commission of Arizona, 63 Ariz. 40, 159 P.2d 305 (1945); State Compensation Fund v. Reed, 12 Ariz.App. 317, 470 P.2d 465 (1970); and State Compensation Fund v. Foughty, 13 Ariz.App. 381, 476 P.2d 902 (1970) (herein referred to as Foughty). We do not lengthen this opinion by an extended discussion of these cases which must be read to fully understand the problems which are involved.

The statutory grounds for annulment are:

' § 25--301. Grounds

'Superior courts may dissolve a marriage, and may adjudge a marriage to be null and void When the cause alleged constitutes an impediment rendering the marriage void. (...