Weaver v. Martori, 5136
| Decision Date | 18 July 1949 |
| Docket Number | 5136 |
| Citation | 208 P.2d 652,69 Ariz. 45 |
| Parties | WEAVER et al. v. MARTORI et al |
| Court | Arizona Supreme Court |
Rehearing Denied September 21, 1949.
Appeal from Industrial Commission.
Proceeding under the Workmen's Compensation Act by Robert R. Weaver guardian for Eugene Chapanar, a minor, also known as Eugene Robert Comanitz, claimant, opposed by Edward Martori and others, constituting Martori Bros. Distributors, employers. To review an award of the Industrial Commission denying compensation, the petitioner appeals by certiorari.
Affirmed.
Lewkowitz & Wein and Charles C. Stidham, Phoenix, for petitioners.
H. S McCluskey, Phoenix, Robert E. Yount, Phoenix, of counsel, for respondents.
OPINION
Petitioner Robert R. Weaver, as guardian for Eugene Chapanar (also known as Eugene Robert Comanitz), a minor, brings before us for review an award of The Industrial Commission of Arizona denying compensation to said minor. The parties will hereafter be referred to as petitioner, minor, and Commission, respectively.
The injury not being disputed, the sole assignment of error is that the Commission erred in finding that the minor was not employed by respondent Martori Bros. at the time of the accident. Some of the propositions of law advanced by the parties demand a recitation of the facts, particularly the steps taken by the minor's representatives to secure damages or compensation for the minor.
The accident occurred in Phoenix on Sunday, July 9, 1945 at 3 p. m. at the Isabell-Hartner Packing Shed, which shed was being operated by the Martori Bros. Distributors, processors of vegetable products, hereafter referred to as the respondent. The minor, who was eleven years old at this time, was engaged in placing, or "kicking" cantaloupes onto a conveyer to be conveyed to a bin. He slipped and fell into the conveyer, and by reason thereof suffered a double fracture of the middle of the left tibia, a fracture of the right tibia, and abrasions on both legs.
The Superior Court of Maricopa County on September 24, 1945, entered an order appointing Victoria Chapanar, the mother of said minor, as his guardian ad litem, and upon the same date she filed a complaint against the respondent for compensatory damages in the sum of $ 25,000 and medical expenses. The case was removed to the Federal court on respondent's motion and the Commission was later made a party to the action. Following our decision in the case of S. H. Kress & Co. v. Superior Court of Maricopa County, 66 Ariz. 67, 182 P.2d 931, 936, which held that the Workmen's Compensation Act afforded the exclusive remedy for injuries resulting to an illegally employed minor, a motion for summary judgment which had been filed by the respondents previously was granted, and an order of dismissal was entered by the court. The Commission suggests that the filing of this suit constituted an election of remedies under Section 56-950, A.C.A.1939, and that the minor, acting through petitioner, had no right to file the instant claim for compensation. If we were dealing with the rights of an adult, or of minors who under Section 56-974, A.C.A.1939 are deemed sui juris, this contention would be sound. However such a claim cannot be sustained as to this minor because the powers of the guardian ad litem then representing him are especially limited in the right of election as stated in 43 C.J.S., Infants, § 111(a):
Here there is no evidence of a court sanctioning such an election.
It further appears from the record that during the pendency of the suit in the Federal court Victoria Chapanar, as mother and guardian ad litem for Eugene Chapanar, filed with the Commission on December 13, 1946, a claim for compensation which was denied on the grounds that; (1) the filing of the suit was an election of remedies; and (2) the claim was not filed within one year after the injury. The filing and rejection of this claim is of no legal significance, even though no appeal was taken therefrom, for the reason that Victoria Chapanar neither as mother or guardian ad litem had any authority to present such a claim. We reiterate our holding in the Kress case, supra, to the effect that "illegally employed minors must be represented by a guardian before The Industrial Commission at all times" and hold that the guardianship referred to therein means a regularly appointed guardian of a minor's estate and not a natural parent or a guardian ad litem.
The petitioner, Robert R. Weaver, was appointed guardian of this minor's estate on July 30, 1947, qualifying upon the same date. He prepared the instant claim for compensation filing it with the Commission on August 1, 1947. It is urged that this filing, made more than two years after the occurrence of the accident, was not timely and therefore the claim was barred because it was not "filed within one (1) year after the day upon which the injury occurred or the right thereto accrued." Section 56-967, A.C.A.1939. We hold that the limitation of time prescribed by our Workmen's Compensation Law for the filing of a claim by an employee thereunder is tolled during the disability of infancy and that the limitation does not begin to run against a minor until either a guardian has been appointed or the infant becomes sui juris, whichever shall first occur. Lineberry v. Town of Mebane, 219 N.C. 257, 13 S.E.2d 429, 142 A.L.R. 1033; Allen v. St. Louis-San Francisco R. Co., 338 Mo. 395, 90 S.W.2d 1050, 105 A.L.R. 1222. Texts: 71 C.J., Workmen's Compensation Acts Section 799 and 8 Am.Jur., Workmen's Compensation, Section 418.
The most vital issue raised in the case is whether the minor was an employee of the respondent. The benefits accruing under the Workmen's Compensation Law are available only to a claimant "who is injured by accident arising out of and in the course of employment". Section 56-936, A.C.A.1939.
As to the employment of the minor the evidence is in sharp conflict. The minor testified that he was directly employed by the foreman Walt Woodruff at a definite and fixed hourly wage, and that he worked Saturday afternoon and on Sunday until the accident occurred. The mother's testimony is to the effect that Woodruff, when h...
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