Southern Pacific Company v. The Industrial Commission of Arizona

• Decision Date: 19 June 1939
• Docket Number: Civil 4087
• Citation: 54 Ariz. 1,91 P.2d 700
• Parties: SOUTHERN PACIFIC COMPANY, a Corporation, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA; L. C. HOLMES, SAM PROCTOR and MORTIE GRAHAM, as Members of Said the Industrial Commission of Arizona; and LORENA O. DAVIS, Applicant, Respondents
• Court: Arizona Supreme Court

91 P.2d 700

54 Ariz. 1

SOUTHERN PACIFIC COMPANY, a Corporation, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA; L. C. HOLMES, SAM PROCTOR and MORTIE GRAHAM, as Members of Said the Industrial Commission of Arizona; and LORENA O. DAVIS, Applicant, Respondents

Civil No. 4087

Supreme Court of Arizona

June 19, 1939

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

Messrs Baker & Whitney and Mr. Lawrence L. Howe, for Petitioner.

Mr Riney B. Salmon and Mr. J. A. Riggins, Jr., for Respondent Lorena O. Davis.

OPINION

LOCKWOOD, J.

Southern Pacific Company, a corporation, the petitioner, has brought before us for review an award of the Industrial Commission of Arizona, the respondent, reinstating a certain award previously made by respondent in favor of Lorena O. Davis the beneficiary.

The questions for our determination are of law only, and the facts necessary for their determination are not in dispute. We state them as follows: On April 14, 1926, William A. Davis, the husband of Lorena O. Davis, was in the employ of petitioner. On that date, and in the course of his employment, he received injuries resulting in his death. His widow made application to respondent for an award for the support of herself and children, and on July 8, 1926, respondent awarded her the sum of $61.42 monthly for her support, which payments were to continue until her death or remarriage. In the latter event she was to be paid a lump sum of $1,474.08, in final settlement of the award. There were several minor children of the deceased, and an award was made in their favor also, but as they are now of age and their rights are not involved in the present case, we need not refer further to them.

On January 20, 1938, the beneficiary intermarried with one Ray Earl Menefee, at Florence, Arizona. A few days after that date she advised petitioner and respondent of the fact and in evidence thereof delivered the latter certified copies of the marriage certificate, including the return of the person solemnizing the rites, and demanded of petitioner that it pay her the lump sum above set forth, in final settlement of the award. The matter was presented to respondent, which approved such settlement, and acting under this advice and the request of the beneficiary, the petitioner delivered to her a negotiable voucher, for a small balance then due her under the original award before her remarriage, and for the amount due as a lump sum after remarriage. This voucher showed on its face that it was made in full settlement of the award. On February 10, 1938, the voucher was endorsed by her, presented at the proper bank, and she received its full face amount.

Some five months later the beneficiary filed a complaint in the superior court of Maricopa county, praying for a divorce from Ray Earl Menefee on the ground of cruelty. About a month and a half later an amended complaint was filed in the same court and cause, seeking a decree of annulment instead of a decree of divorce. As grounds for her suit for annulment, she charged that Menefee was physically incompetent at the time of the marriage, and that such incompetence had continued up to the time of the commencement of her action; that before marriage he had assured her he was competent; and that she would not have entered into said marriage contract except for his fraudulent statements and assurances. On the 8th of August, 1938, the trial court granted to her a decree of annulment of the marriage, which reads, so far as material, as follows:

"The Court, being duly advised in the premises, finds:

"That the allegations of the plaintiff's complaint, all and singular, are true; that the plaintiff is now and for more than one year last past has been an actual and bona fide resident of Maricopa County, State of Arizona; that the plaintiff and defendant entered into the contract of marriage and the marriage ceremony at Florence, Arizona, on the 20th day of January, 1938; that there is no issue of said marriage; that there is no community property of the parties hereto; that at the time of said marriage of plaintiff and defendant herein plaintiffwas physically incompetent, and that said incompetency has continued to the time of the commencement of this action; that defendant induced said plaintiff to enter into said marriage contract by fraudulent statements and assurances regarding his physical competency; and that said marriage was fraudulent in its inception, and therefore null and void.

"Wherefore, it is ordered, adjudged and decreed: That the bonds of matrimony heretofore existing between plaintiff and defendant are hereby annulled, cancelled, set aside and held to have been null and void; and that said plaintiff be, and she is hereby granted a decree annulling said marriage."

This decree was never appealed from, nor brought before this court for review, nor was there any attempt made to set it aside in any court of competent jurisdiction. Thereafter, and on September 8, 1938, the beneficiary applied to the respondent, tendering back to the petitioner herein the amount which she had received as lump settlement, as aforesaid, and asking that the settlement be set aside and that she be restored to her position under the original findings and award as it existed before her marriage to Menefee.

Petitioner protested most strenuously against the setting aside of the settlement and the reinstatement of the award, and the matter was heard before respondent. At the hearing an award was made reinstating the original award which required the monthly payments, as aforesaid, whereupon the matter was brought before us for review.

Petitioner raises several interesting and novel questions of law for our consideration, and we deal with them in what we consider their logical order. The first is whether a widow to whom an award of monthly compensation is made, and who has received under our law a lump sum in settlement of the original award upon a remarriage, may have such original award reinstated upon tendering back the amount of the lump settlement, if the marriage has been annulled by a court of competent jurisdiction.

The question is a new one in this state. Nor have we been cited to many cases bearing thereon. The one nearest thereto in the factual situation is Eureka Block Coal Co. v. Wells, 83 Ind.App. 181, 147 N.E. 811, 812. Therein an award had been made, as in the present case, of monthly compensation, and the widow remarried. The marriage was afterwards annulled, and she claimed she was entitled to continued compensation as the widow of the original claimant. The court said:

"Appellant points out that clause (e) of section 38 of the Workmen's Compensation Act (Acts 1919, p. 165), among other things, provides that 'the dependency of a widow... shall terminate with... her marriage subsequent to the death of the employe,' and with much earnestness contends that by reason of this provision of the act the marriage of appellee to McCormick, though voidable, nevertheless was a marriage which terminated absolutely and permanently the dependency of appellee as widow of James E. Wells. We do not concur in this view. Giving the provision referred to a broad and liberal construction, as we must, a marriage, within the meaning of the statute, is not a void or voidable marriage which may at once be annulled, but a valid and subsisting marriage."

The cases of Crummies Creek Coal Co. v. Napier, 246 Ky. 569, 55 S.W.2d 339, and Dodds v. Pittsburgh, M. & B. Rys. Co., 107 Pa.Super. 20, 162 A. 486, by inference adopt the same rule. While in both cases last cited, the court refused to restore the original award of compensation, the opinions show clearly that it was because the marriages in both cases had not been legally annulled, and the implication is that had they been, compensation would have been restored. We hold, therefore, that when a widow who is entitled to compensation under the Arizona law has remarried and received a lump settlement of the award, a legal annulment of the marriage will entitle her to have the original award reinstated upon tendering back the amount she has received as lump settlement.

The next question is whether the receipt of a lump settlement under the directions of the respondent, with the understanding on the part of all parties that such settlement was in full release and satisfaction of all claims, estops the widow from asking that the award be reinstated after an annulment of her marriage.

In the case of Eureka Block Coal Co. v. Wells, supra, which is the only one cited to us where the original award was reinstated after the annulment of the marriage, petitioner points out that the settlement therein was a transaction between the parties, not made pursuant to an order of the Industrial Board of Indiana, and urges that had it been made pursuant to the order of the board, the original award would not have been reinstated. We find nothing in the opinion which sustains this conclusion. Estoppel only exists when the party sought to be estopped, with full knowledge of all the facts bearing on the situation, takes a position which is inconsistent with one assumed later. In the present case, there was nothing except surmise to show that the beneficiary had any knowledge at the time she made her settlement of the facts upon which she later based her suit for annulment. Under such circumstances, we think the acceptance of the lump settlement did not estop her from asking for a reinstatement of the original award.

This brings us to the question which was most strenuously urged by petitioner at the hearing. It contended, and still contends that the marriage was not, under our law, subject to annulment for the cause set forth in the complaint, and...